    [Senate Hearing 119-290]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 119-290

                     SHUT YOUR APP: HOW UNCLE SAM JAWBONED
                       BIG TECH INTO SILENCING AMERICANS
    =======================================================================

                                    HEARING

                                   BEFORE THE

                             COMMITTEE ON COMMERCE,
                          SCIENCE, AND TRANSPORTATION
                              UNITED STATES SENATE

                        ONE HUNDRED NINETEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                OCTOBER 8, 2025

                                   __________

        Printed for the use of the Committee on Commerce, Science, and
                                 Transportation

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                    Available online: http://www.govinfo.gov

                                    __________

                       U.S. GOVERNMENT PUBLISHING OFFICE
    62-821 PDF                  WASHINGTON : 2026
    -----------------------------------------------------------------------------------

           SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                        ONE HUNDRED NINETEENTH CONGRESS

                                 FIRST SESSION

                           TED CRUZ, Texas, Chairman
    JOHN THUNE, South Dakota             MARIA CANTWELL, Washington,
    ROGER WICKER, Mississippi                Ranking
    DEB FISCHER, Nebraska                AMY KLOBUCHAR, Minnesota
    JERRY MORAN, Kansas                  BRIAN SCHATZ, Hawaii
    DAN SULLIVAN, Alaska                 EDWARD MARKEY, Massachusetts
    MARSHA BLACKBURN, Tennessee          GARY PETERS, Michigan
    TODD YOUNG, Indiana                  TAMMY BALDWIN, Wisconsin
    TED BUDD, North Carolina             TAMMY DUCKWORTH, Illinois
    ERIC SCHMITT, Missouri               JACKY ROSEN, Nevada
    JOHN CURTIS, Utah                    BEN RAY LUJAN, New Mexico
    BERNIE MORENO, Ohio                  JOHN HICKENLOOPER, Colorado
    TIM SHEEHY, Montana                  JOHN FETTERMAN, Pennsylvania
    SHELLEY MOORE CAPITO, West Virginia  ANDY KIM, New Jersey
    CYNTHIA LUMMIS, Wyoming              LISA BLUNT ROCHESTER, Delaware
                     Brad Grantz, Republican Staff Director
               Nicole Christus, Republican Deputy Staff Director
                       Lila Harper Helms, Staff Director
                     Melissa Porter, Deputy Staff Director

                               C O N T E N T S

                                  ----------
                                                                       Page
    Hearing held on October 8, 2025..................................     1
    Statement of Senator Schmitt.....................................     1
        Prepared statement of Hon. Ted Cruz, U.S. Senator from Texas.     3
    Statement of Senator Cantwell....................................     4
    Statement of Senator Klobuchar...................................    30
    Statement of Senator Fischer.....................................    31
    Statement of Senator Moreno......................................    35
        Letter dated April 11, 2018 to Hon. Ajit Pai from Senators
          Cantwell, Udall, Murray, Warren, Wyden, Markey, Blumenthal,
          Smith, Sanders, Merkley, Baldwin and Booker................    36
    Statement of Senator Rosen.......................................    47
    Statement of Senator Blackburn...................................    49
    Statement of Senator Markey......................................    51
    Statement of Senator Peters......................................    53
    Statement of Senator Lujan.......................................    55
    Statement of Senator Blunt Rochester.............................    57
    Statement of Senator Hickenlooper................................    60

                                   Witnesses

    Eugene Volokh, Thomas M. Siebel Senior Fellow, Hoover
      Institution, Stanford University...............................     6
        Prepared statement...........................................     8
    Alex Berenson, Independent Journalist and Author.................    18
        Prepared statement...........................................    20
    Sean Davis, Chief Executive Officer, The Federalist..............    21
        Prepared statement...........................................    23
    Gene Kimmelman, Senior Fellow, Tobin Economic Policy Center, Yale
      University.....................................................    26
        Prepared statement...........................................    27

                                    Appendix

    Letter dated October 8, 2025 to Hon. Ted Cruz and Hon. Maria
      Cantwell from The Leadership Conference on Civil and Human
      Rights.........................................................    65
    Writers Guild of America West (WGAW) and Writers Guild of America
      East (WGAE), prepared statement................................    69
    Letter dated October 3, 2024 to Hon. Jessica Rosenworcel, Hon.
      Anna Gomez and Hon. Geoffrey Starks from Senator Mike Lee......    22
    Letter dated June 8, 2022 to Hon. Jessica Rosenworcel from
      Senator Marco Rubio, Senator Rick Scott, Senator Tom Cotton;
      and Members of Congress: Carlos Gimenez, Maria Elvira Salazar
      and Mario D!az-Balart..........................................    75
    Response to written questions submitted to Eugene Volokh by:
        Hon. Ted Cruz................................................    77
        Hon. Maria Cantwell..........................................    78
    Response to written questions submitted to Gene Kimmelman by:
        Hon. Maria Cantwell..........................................    79
        Hon. Amy Klobuchar...........................................    81

                                 SHUT YOUR APP:
            HOW UNCLE SAM JAWBONED BIG TECH INTO SILENCING AMERICANS

                                  ----------

                           WEDNESDAY, OCTOBER 8, 2025

                                           U.S. Senate,
            Committee on Commerce, Science, and Transportation,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:31 a.m., in
    room SR-253, Russell Senate Office Building, Hon. Eric Schmitt,
    presiding.
        Present: Senators Schmitt [presiding], Fischer, Blackburn,
    Sullivan, Moreno, Sheehy, Cantwell, Klobuchar, Markey, Peters,
    Rosen, Lujan, Hickenlooper, Fetterman, and Blunt Rochester.

                OPENING STATEMENT OF HON. ERIC SCHMITT,
                       U.S. SENATOR FROM MISSOURI

        Senator Schmitt [presiding]. We will call this Commerce,
    Science, and Transportation Committee meeting to order.
        The author of the great book ``Dune'', Frank Herbert, set
    the table for what techno-totalitarianism looked like. Once men
    turned their thinking over to machines in the hope that this
    would set them free, but that only permitted other men with
    machines to enslave them.
        In the West, we are headed down this path toward thought
    crime enslavement. In the United Kingdom, 30 Brits are arrested
    per day for speech-related offenses. In the EU, the Digital
    Services Act is creating a censorship regime that would make
    Communist China blush. In the United States, before President
    Trump's return to power, the American vast censorship
    enterprise sought to control speech, to control how we think,
    and to influence national discourse and elections.
        In 2022, as the Attorney General of Missouri, I filed a
    landmark lawsuit, Missouri v. Biden, which Justice Alito called
    one of the most important First Amendment cases in American
    history. Through the lawsuit uncovered a vast censorship regime
    perpetrated by the Biden administration, I saw all the e-mails,
    I saw all the text messages. I deposed senior government
    officials including Anthony Fauci.
        Missouri v. Biden uncovered for the American people how the
    Biden administration built one of the largest censorship
    operations in American history by working in secret through
    third parties, pressuring, bullying, threatening, jawboning big
    tech into suppressing viewpoints that they disagreed with.
        Jen Saki boasted about flagging disinformation with
    Facebook. The Biden White House was revealed to have been
    backchanneling with YouTube about suppressing disfavored
    speech, suppressing things like the lab-leak theory. White
    House Digital Director Rob Flaherty pressured platforms like
    Facebook and YouTube to censor all kinds of COVID-related
    speech. Joe Biden said Facebook was killing people.
        Last week, Chairman Cruz and the Senate Commerce Committee
    released a report that revealed more details about how the
    Biden administration, as part of this larger censorship
    operation, weaponized the Cybersecurity and Infrastructure
    Security Agency, or CISA, into an agent of censorship,
    pressuring big tech to police speech.
        The Biden administration's collusion with big tech and non-
    governmental organizations to censor speech, infringed on the
    individual freedoms of millions of Americans to limit what they
    could say, what they could hear, and what they could read.
        Fortunately, President Trump won a historic victory and on
    January 20, 2025, the first day of his second Presidential
    term, President Trump signed an executive order titled
    ``Restoring Freedom of Speech and Ending Federal Censorship''.
    But the story of censorship does not begin and end with the
    Federal Government. Big tech was censored--was censoring long
    before Presidential job owning and I imagine will continue to
    censor long after.
        Here are some instances of pre-Biden censorship. All of big
    tech censored the Hunter Biden laptop story. Google banned
    COVID skepticism. Twitter shadow banned and suspended
    conservatives. Facebook throttled posts from pages like The
    Federalist in the New York Post. Facebook flagged and removed
    posts questioning voter ID laws and ballot harvesting.
        Two of today's witnesses, Alex Berenson and Sean Davis were
    direct targets of this censorship operation and were
    deplatformed, shadow banned and silenced for their viewpoints.
    Congress should address this problem with decisive legislative
    action like my Collude Act or my Censorship Accountability Act,
    both of which hold big tech and government sensors accountable.
        I look forward to hearing from our witnesses about what
    Congress and this Committee can do to make sure that no
    American, regardless of their political leanings, ever learns
    that the Federal Government, entrusted with protecting their
    First Amendment Rights, is actually working to undermine them
    behind closed doors.
        Our Founding Fathers recognized that freedom of speech is
    vital. Protecting it is first and foremost in the Bill of
    Rights. While some argued that free speech was already
    protected because the Constitution did not give the government
    power to censor, the framers went further, affirmatively
    restricting government intrusion.
        The First Amendment is the beating heart of our
    Constitution. Free speech is not just instrumental but an end
    to itself in the digital age with all the peril and possibility
    that accompanies it, the struggle for free speech is the
    struggle for civilization itself.
        I want to thank the witnesses for being here today and look
    forward to their testimony.
        And I will, before I turn it over the Ranking Member for
    her opening remarks, request that Chairman Cruz's opening
    statement be entered into the record.
        Without objection.
        [The prepared statement of Chairman Cruz follows:]

          Prepared Statement of Hon. Ted Cruz, U.S. Senator from Texas
        In a free society, the people govern--not by mob or might--but by
    reasoned argument and the rule of law. Essential to keeping a society
    free is the ability of a citizenry to speak freely and debate openly
    without fear of government reprisal. That ability--to think and speak
    one's mind--enables a society to hold its government to account. It's
    so critical that our Founders made this natural right a
    constitutionally protected one.
        The First Amendment is a powerful weapon against the government's
    ability to publicly censor its own citizens. But in recent years, we
    have seen the government censor in secret through third parties,
    ``jawboning'' Big Tech into suppressing user content, often under the
    guise of ``safety'' or ``national security.''
        It starts subtly. Officials say they are combatting foreign
    disinformation campaigns from the Russians or the Chinese. Next, they
    clamp down on anyone re-posting such content. Then, government
    officials curtail speech that undermines their own positions.
        Tweeting about COVID-19 vaccine mandates or the efficacy of wearing
    a mask? Sorry, that's a ``safety'' issue. Questioning mail-in voting?
    That's a threat to critical election infrastructure.
        And so, our government becomes the speech police--the arbiter of
    truth--silencing those that disagree.
        Last week, I released a report detailing how the Biden
    administration weaponized the Cybersecurity and Infrastructure Security
    Agency to pressure Big Tech into policing speech. Two of today's
    witnesses--Alex Berenson and Sean Davis--were personally targeted by
    our government. At the behest of government officials, Mr. Berenson was
    completely deplatformed for having the temerity to challenge the Biden
    COVID narrative. Mr. Davis was shadow-banned for questioning the
    integrity of mail-in voting.
        But the silencing didn't stop there. The Biden administration
    sought to bring its censorship playbook into the Age of AI. It ``volun-
    told'' AI developers to allow the National Institute of Standards and
    Technology to test AI products for misinformation and ``harmful''
    speech. The National Science Foundation funded propaganda tools.
        By controlling AI inputs and outputs, the Biden administration was
    deciding what information Americans could see and consume--an effort
    that continues with laws in California, Colorado, and New York.
        Now censorship is growing around the world. In the United Kingdom,
    more than 12,000 Britons are arrested every year for speech-related
    offenses, according to the Times of London. My CISA (siss-uh) report
    shows why, in this context, the United States must remain a free speech
    beacon, zealously guarding against censorship regardless of who is in
    office.
        A few weeks ago, I received a letter from nearly every Democrat on
    this Committee calling for a hearing to stop an ``unprecedented attack
    on the First Amendment.'' The letter rightly stated that ``government
    officials cannot attempt to coerce private parties in order to punish
    or suppress views that the government disfavors.''
        But my colleagues weren't referring to the silencing of Messrs.
    Berenson and Davis or any of the other countless Americans censored
    during the previous administration. They were coming to the defense of
    Jimmy Kimmel, whose unpopular show was suspended by ABC following
    critical comments from the FCC Chairman.
        I've been clear on my views about Chairman Carr's comments.
        But I must ask my colleagues: Where were you when the Biden
    administration was silencing the American people?
        Maybe it's too much to ask Democrats to defend the First Amendment
    regardless of who is in power, not just when it is politically
    convenient.
        No government official--regardless of party--should be engaged in
    jawboning. The First Amendment is not about opinions you agree with.
    It's not about opinions that are right and reasonable. The First
    Amendment is about opinions that you passionately disagree with and the
    right of others to express them. I am one who agrees with John Stuart
    Mill: the best solution for bad ideas, for bad speech, is more speech
    and better ideas. We don't need to use brute force to silence them
    because truth is far more powerful than force.
        In the coming weeks, I will be introducing legislation to prohibit
    government jawboning and empower Americans to hold government officials
    accountable.
        As we'll hear today, Alex Berenson and Sean Davis face major
    hurdles in seeking remedies after the government launched secret
    censorship campaigns against them. My bill will fix that problem.
        I'll give my Democrat colleagues a chance to redeem themselves:
    Join me in standing up for free speech by working to advance this
    legislation and stop censorship by government officials.
        I thank the witnesses who are here with us today, and I look
    forward to this critical discussion about how we can protect freedom of
    thought in our country.

        Senator Schmitt. Ranking Member Cantwell.

                   STATEMENT OF HON. MARIA CANTWELL,
                      U.S. SENATOR FROM WASHINGTON

        Senator Cantwell. Thank you. Thank you, Mr. Chairman. And
    welcome to our witnesses. Thank you for joining us this
    morning. These issues of the media, and consumers, and free
    speech, very important issues for us to discuss in an era where
    consumers are paying more, where not enough competition exists,
    where deals are getting done that lead to fewer choices, less
    local news. I do have an important question. Where is Chairman
    Carr?
        Americans are paying and spending more money on content
    that used to be free more than ever before. And just a few
    weeks ago, we witnessed a deeply troubling episode. The FCC
    Chairman demanding ABC take immediate action against Jimmy
    Kimmel for tasteless remarks and saying, quote, ``We can do
    this the easy way or the hard way'', end quote. A line that
    Senator Cruz rightly criticized as something quote, ``Right out
    of Goodfellows'', end quote.
        Within hours, the Nation's largest ABC affiliate, NextStar
    and Sinclair, announced they would preempt the show
    indefinitely, and shortly thereafter, ABC suspended Jimmy
    Kimmel Live altogether. While ABC, NextStar, and Sinclair have
    since returned Mr. Kimmel to the air, that chain of events
    should alarm every American, because the power of the FCC was
    never meant to weaponize against a President or political
    targets.
        Let me be clear. Chairman Carr does not have the authority
    to police speech, nor does he or the White--that he or the
    White House finds offensive. He does not have the authority to
    threaten licenses based on content decisions. And this is
    especially true when those same companies have mergers and
    licensings pending before the FCC.
        That is exactly the kind of political interference,
    chilling effect on free speech that the First Amendment was
    designed to prevent. We need to hold Chairman Carr accountable
    for these threats. And that is why I have called on us to have
    a hearing and hopefully that will happen sometime in the near
    future.
        There is a need to have oversight on this, and I hope that
    this hearing does happen without further delay. Professor
    Volokh, am I saying that right, Volokh?
        Mr. Volokh. Yes.
        Senator Cantwell. Thank you--said in his testimony, quote,
    ``FCC Chairman Brendan Carr's statement about Jimmy Kimmel may
    likewise have threatened retaliation in a way that would
    violate the First Amendment'', end quote.
        So the point on this there is broad agreement. Free
    expression is not a partisan issue. It is the bedrock of our
    democracy. So this is in a long list of issues about the First
    Amendment, I think, the President is making pretty much a
    standard issue.
        Just last week, the Federal Court found that the
    administration violated the First Amendment by arresting,
    detaining, and deporting non-citizen students and faculty
    members for their pro-Palestinian advocacy. This follows the
    White House revocation of the Associated Press' credentials for
    refusal to use the term, ``Gulf of Mexico'', clearly an attempt
    to police the language and intimidate free speech.
        Meanwhile, the administration continues to wield the full
    power of the Federal Government to retaliate against law firms
    the President does not like and threaten funding for
    universities he disfavors.
        It is alarming to see the administration use its regulatory
    and informal authority to unlawfully and infringe on free
    speech, the free press, and the First Amendment. And it is
    important that we also understand the broader context here.
    That is why Mr. Kimmelman, I am so glad to see you here today.
        Local journalism in America is already under extraordinary
    strain. The Commerce Committee has documented how online
    platforms monopolize advertising, siphon revenue away from
    local newspapers and broadcasters, and the result has been
    newsroom closures, layoffs across the country, and even as the
    public trust in local journalism remains at an all-time high.
        At the same time, media consolidation has been concentrated
    into fewer hands. Since 2005, the U.S. has lost almost one-
    third of its newspapers. This year alone, 127 newspapers
    closed. Nearly 55 million Americans have limited or no access
    to local news, disproportionately affecting rural areas. That
    leaves new outlets more vulnerable to political and corporate
    pressures and leaves the public without further resources of
    getting to true competition, which I believe gets us to the
    truth.
        If Chairman Carr can threaten one network over a single
    late-night host and his message, what kind of message does that
    send to local broadcasters in Seattle or Houston? Do they lose
    their licenses if they are reporting or they are crossing the
    White House? This kind of intimidation undermines the very
    foundation of the free press.
        I want to be clear, protecting a free press does not mean
    ignoring the dangers of harmful hate speech. I have expressed
    concerns about companies like Facebook, Google, and X on issues
    that really did threaten the lives of individuals. And I know
    that we will hear a lot about what the Biden administration did
    in these areas. But let us not forget the Supreme Court
    rejected allegations of the Biden administration censorship
    because the record showed that social media companies,
    ``Continued to exercise their independent judgment'', and had,
    quote, ``Independent incentives to moderate content'' end
    quote. I am sure we will talk a lot about this.
        Persuading companies to enforce their own content
    moderation policies is not the same, is not the same as
    threatening them with retaliation. And that is precisely what
    Chairman Carr did when he publicly threatened ABC, an entity
    over which the FCC holds direct regulatory power, to take
    action over the speech the administration did not like.
        Holding companies accountable for amplifying harm is not
    the same as expressing Constitutional protected speech the
    President finds politically inconvenient. That is what we
    should be focusing on today. making sure the FCC, as a Federal
    agency, cannot use its authority to threaten or intimidate the
    media to ensure the licensed decisions are based on the law and
    not on political coercion. I hope today we can speak clearly
    about this and do what we can to make sure that we show that
    free speech is something we all agree on.
        Thank you, Mr. Chairman. And look forward to hearing from
    the witnesses.
        Senator Schmitt. Thank you, Ranking Member.
        One point of clarification for the record, Murthy v.
    Missouri was not decided that way. It was sent back to lower
    court for additional arguments on standing, not on the merits.
        I would like to introduce our witnesses for today. Our
    first witness is Mr. Eugene Volokh, a Senior Fellow with the
    Hoover Institution at Stanford University and a Professor of
    Law Emeritus at UCLA School of Law. He is an expert in First
    Amendment Law, and his writings have been cited in over 300
    court opinions including ten Supreme Court cases. Welcome.
        Our second witness is Mr. Alex Berenson, an author,
    independent journalist, and victim of the Biden
    administration's embargo on free speech. I look forward to
    hearing from Mr. Berenson and his story, and what we can do to
    preserve speech online.
        Our third witness is Mr. Sean Davis, Chief Executive
    Officer and Co-founder of The Federalist, a conservative news
    outlet that was subject to censorship and demonetization
    efforts for speaking out against the COVID-19 shutdowns.
        And our final witness is Mr. Gene Kimmelman, a Senior
    Policy Fellow at Yale's Tobin Economic Policy Center and a
    Senior Research Fellow at the Harvard Kennedy School's Center
    for Business and Government.
        And at this point would recognize Mr. Volokh for your own
    opening statement. Thank you for being here.

      STATEMENT OF EUGENE VOLOKH, THOMAS M. SIEBEL SENIOR FELLOW,
                HOOVER INSTITUTION, STANFORD UNIVERSITY

        Mr. Volokh. Thank you. Thank you very much for having me.
    This is a topic that is I think very important, and something
    that I have been very interested in myself. I should also say
    by sheer accident turns out that today is 50 years to the day
    since my parents brought me to the United States from the then
    Soviet Union. So thank you to the United States of America for
    letting me in.
        Very, very glad to be here. So I wanted to speak briefly
    about the First Amendment Law on the subject both that which is
    settled and that which is not entirely certain. So one thing
    that I think is worth noting is that the word ``jawboning'' is
    sometimes used in two different senses. One sense is coercion,
    when the government is essentially threatening someone with
    retaliation as a means of suppressing either that person's
    speech or getting that person to suppress somebody else's
    speech.
        A second one is what might call persuasion and maybe
    pressure, short of coercion. When the government is kind of
    urging people, some people might say again pressuring people to
    restrict, again, either their own speech or other people's
    speech.
        So the government coercion is generally unconstitutional. I
    think, indeed, in the remarks of Chairman Carr seemed to be an
    attempt at coercion. Whether or not they actually caused the
    suspension of Jimmy Kimmel, I think they were an attempt to do
    something that the Constitution does not allow.
        Just last year the Supreme Court found in NRA v. Vullo,
    that the National Rifle Association had adequately alleged
    coercion on the part of New York government authorities aimed
    at trying to get insurance companies to limit ties to the NRA
    as a means of trying to interfere with the NRA's political
    advocacy. So that is pretty well settled for that
    constitutional problem.
        Now, what about persuasion? Well, in some situations, the
    government is entitled to urge entities to not speak. You can
    imagine a situation where a police chief calls up a newspaper
    and says: Look, I am not trying to coerce you. I know I cannot
    coerce you. You can publish this article you are about to
    publish, but it is going to interfere with us catching the
    criminals, and you would not want that, right? So could I just
    ask you please to do this?
        You know, some amount of that has got to be permissible. Or
    to take another example as to misinformation. Somebody calls up
    a reporter and says: You are about to publish this article or
    this op-ed and it is just false. It is just wrong. Don't you
    want to be corrected on this?
        Again, some amount of that, it seems to me, has to be
    constitutionally permissible. At the same time, there is a
    complication because the line between coercion and persuasion
    is often very hard to draw. And that is particularly true when
    the speaker has power over the listener.
        The Supreme Court has most clearly recognized this in the
    employment context. Employers are entitled to talk to their
    employees, including about unionization. They are entitled to
    explain why they think unionizing would be a mistake. But the
    court has recognized that in looking at what the employer says
    and seeing if the employer is speaking coercively, one has to
    appreciate that the employee is dependent on the employer, and
    may pick up coercive messages even in situations where it is
    not expressed on the face of this statement.
        And I think the same thing is true when the government,
    which is a very powerful regulator, is talking to people in a
    regulated industry. There are times when what might sound on
    its face, or let us say just on the bare paper might look like
    it is not coercive may in fact, in context, be quite coercive.
        Another concern is the merger of government and private
    power when it is not just kind of occasional conversations but
    a systemic mechanism for trying to restrict speech. An analogy
    might be a few amendments down in the Fourth Amendment. If you
    have a roommate and you notice some evidence of crime and you
    call up the police, the police can use that evidence, because
    that is not a government search. The police did not search for
    it. You did.
        On the other hand, if the police called you up and say:
    Hey, you know, not trying to coerce you, but could you please
    rummage through your roommate's papers? That does become a
    Fourth Amendment's--a search subject to the Fourth Amendment,
    precisely because it is encouraged, substantially encouraged by
    the police. The police become enmeshed with the private search.
    So that suggests that there is something similar may apply to
    the First Amendment.
        So let me just close with suggesting that this is, in fact,
    the right body to be dealing with a lot of these concerns. That
    some of these problems can only be solved through statutory
    action, through laws that maybe limit attempts at systemic
    persuasion and systemic suppression of speech even if it is not
    technically coercive.
        At laws that facilitate finding information about that, and
    at laws that actually provide a cause of action which the
    Congress has for over a century provided against state
    governments, but provided against the Federal Government, as
    well.
        [The prepared statement of Mr. Volokh follows:]

       Prepared Statement Eugene Volokh, Thomas M. Siebel Senior Fellow,
                    Hoover Institution, Stanford University
        Dear Chairman and Members of the Committee:

        Thank you for asking me to testify on the important First Amendment
    issues raised by government jawboning, a subject that I have been
    studying for several years. I will try to offer a big picture view of
    the matter, rather than focusing on the particular factual details
    related to, for instance, the various interactions between CISA (the
    Cybersecurity and Infrastructure Security Agency) and social media
    platforms.
        ``To jawbone'' has been defined as ``to attempt to persuade or
    pressure by the force of one's position of authority,'' \1\ especially
    when done by the government. That in turn reflects two possible
    meanings:
    ---------------------------------------------------------------------------
        \1\ See, e.g., Collins Dictionary, https://
    www.collinsdictionary.com/us/dictionary/english/jawboning (quoting
    Irwin Stelzer, GM Has Riled the Jawboner-in-Chief, Times (London), Dec.
    2, 2018).

      (1)  government officials trying to persuade through the force of
            their reasoning, though strengthened by their authoritativeness
    ---------------------------------------------------------------------------
            and resulting credibility and influence;

      (2)  government officials trying to coerce through the explicit or
            implicit threat of retaliation stemming from their position of
            authority, e.g., through the threat of enforcement or
            regulation.

        As a practical matter, the two meanings are closely intertwined,
    especially since it may be hard to tell whether there is an implicit
    ``or else'' behind a request. As a legal matter, though, there may be a
    substantial distinction, at least when it comes to the government
    trying to pressure entities into shutting down third parties' speech.
               I. Government Coercion: Generally Unconstitutional
        Say the government doesn't like some speech, though the speech is
    constitutionally protected against direct punishment (i.e., the speech
    doesn't fit into one of the narrow First Amendment exceptions, for
    example the exception for true threats of criminal conduct). The
    government therefore demands that a private entity that has the private
    power to control such speech--say, a social media platform, a
    bookstore, a financial intermediary--suppress the speech, or else face
    some coercive government action. That generally violates the First
    Amendment. ``[A] government official cannot do indirectly what she is
    barred from doing directly: A government official cannot coerce a
    private party to punish or suppress disfavored speech on her behalf.''
    \2\
    ---------------------------------------------------------------------------
        \2\ NRA v. Vullo, 602 U.S. 175, 190 (2024).
    ---------------------------------------------------------------------------
        The long-standing Supreme Court precedent addressing that issue is
    Bantam Books, Inc. v. Sullivan (1963), in which a state commission
    threatened to prosecute stores that sold books it deemed pornographic,
    including books that were protected by the First Amendment.\3\
    Likewise, in NRA v. Vullo (2024), the Court held that the NRA could sue
    New York financial regulators under the First Amendment for allegedly
    coercing banks and insurance companies ``to cut their ties with the NRA
    in order to stifle the NRA's gun-promotion advocacy.'' \4\ Under these
    precedents, FCC Chairman Brendan Carr's statements about Jimmy Kimmel
    may likewise have threatened retaliation in a way that would violate
    the First Amendment.\5\
    ---------------------------------------------------------------------------
        \3\ 372 U.S. 58 (1963).
        \4\ 602 U.S. at 197. Note that I was one of the NRA's lawyers in
    this case.
        \5\ The statements on the Benny Johnson podcast, https://x.com/
    bennyjohnson/status/1968359685045838041, were:

        Broadcasters . . . have a license granted by us at the FCC, and
    that comes with it an obligation to operate in the public interest. . .

        We can do this the easy way or the hard way. These companies can
    find ways to change conduct, to take action, frankly, on Kimmel or
    there is going to be additional work for the FCC ahead. . . .

        There's calls for Kimmel to be fired. I think you could certainly
    see a path forward for suspension over this.

        The FCC has a rule that prohibits ``broadcast news distortion,''
    https://www.fcc.gov/broadcast-news-distortion, and it's possible that--
    given the lower First Amendment protection given to broadcasting than
    to, say, newspapers or the Internet--the FCC might be able to impose a
    modest fine for Kimmel's statement or even just issue an admonition.
    But there appears to be no justification for the government's demanding
    outright suspension of the Kimmel show based on one false statement,
    nor does there appear to be any precedent in the past four decades for
    anything more than a token punishment in such a situation.
    ---------------------------------------------------------------------------
        Lower court cases have found that there could be impermissible
    coercion even absent express threat of prosecution or regulatory
    action, so long as the threat is sufficiently implicit. Consider two
    cases that were favorably cited by the Supreme Court in NRA v. Vullo:

        1. The president of the Borough of Staten Island sent a letter to a
    billboard company urging it to take down an antihomosexuality
    billboard. The letter closed with:

            Both you and the sponsor of this message should be aware that
            many members of the Staten Island community, myself included,
            find this message unnecessarily confrontational and offensive.
            As Borough President of Staten Island, I want to inform you
            that this message conveys an atmosphere of intolerance which is
            not welcome in our Borough.

            P.N.E. Media owns a number of billboards on Staten Island and
            derives substantial economic benefits from them. I call on you
            as a responsible member of the business community to please
            contact Daniel L. Master, my legal counsel and Chair of my
            Anti-Bias Task Force . . . to discuss further the issues I have
            raised in this letter.

        Potentially unconstitutional, the Second Circuit held in Okwedy v.
    Molinari (2003):

            [A] jury could find that Molinari's letter contained an
            implicit threat of retaliation if PNE failed to accede to
            Molinari's requests. In his letter, Molinari invoked his
            official authority as ``Borough President of Staten Island''
            and pointed out that he was aware that ``P.N.E. Media owns a
            number of billboards on Staten Island and derives substantial
            economic benefits from them.'' He then ``call[ed] on'' PNE to
            contact Daniel L. Master, whom he identified as his ``legal
            counsel and Chair of my Anti-Bias Task Force.''

            Based on this letter, PNE could reasonably have believed that
            Molinari intended to use his official power to retaliate
            against it if it did not respond positively to his entreaties.
            Even though Molinari lacked direct regulatory control over
            billboards, PNE could reasonably have feared that Molinari
            would use whatever authority he does have, as Borough
            President, to interfere with the ``substantial economic
            benefits'' PNE derived from its billboards in Staten Island.\6\
    ---------------------------------------------------------------------------
        \6\ 333 F.3d 339, 341, 342, 344 (2d Cir. 2003).

        2. The Sheriff of Cook County in Illinois sent letters to
    Mastercard and Visa saying, ``As the Sheriff of Cook County, a father
    and a caring citizen, I write to request that your institution
    immediately cease and desist from allowing your credit cards to be used
    to place ads on websites like Backpage.com [which hosted ads for sex-
    related services].'' Potentially unconstitutional, the Seventh Circuit
    held in Back-page.com, LLC v. Dart (2015). The court went through the
    ---------------------------------------------------------------------------
    Sheriff's letter in detail and concluded:

            And here's the kicker: ``Within the next week, please provide
            me with contact information for an individual within your
            organization that I can work with [harass, pester] on this
            issue.'' The ``I'' is Sheriff Dart, not private citizen Dart--
            the letter was signed by ``Thomas Dart, Cook County Sheriff.''

            And the letter was not merely an expression of Sheriff Dart's
            opinion. It was designed to compel the credit card companies to
            act by inserting Dart into the discussion; he'll be chatting
            them up.

            Further insight into the purpose and likely effect of such a
            letter is provided by a strategy memo written by a member of
            the sheriff's staff in advance of the letter. The memo
            suggested approaching the credit card companies (whether by
            phone, mail, e-mail, or a visit in person) with threats in the
            form of ``reminders'' of ``their own potential liability for
            allowing suspected illegal transactions to continue to take
            place'' and their potential susceptibility to ``money
            laundering prosecutions . . . and/or hefty fines.'' Allusion to
            that ``susceptibility'' was the culminating and most ominous
            threat in the letter.\7\
    ---------------------------------------------------------------------------
        \7\ 807 F.3d 229, 231-32 (7th Cir. 2015). The bracketed words,
    ``harass, pester,'' were added by the court, presumably as an
    indication of how the court interpreted ``work with.'' See Complaint
    Exh. B at 7, Backpage.com, LLC v. Dart, No. 1:15-cv-06340 (N.D. Ill.
    July 21, 2015).

        3. Finally, consider a third example: The Biden administration's
    attempting to persuade social media platforms to block or remove posts
    on various topics, including ``the COVID-19 lab-leak theory, pandemic
    lockdowns, vaccine side-effects, election fraud, and the Hunter Biden
    laptop story.'' The Fifth Circuit concluded in Missouri v. Biden (2023)
    that some of the government's actions were likely unconstitutionally
    ---------------------------------------------------------------------------
    coercive:

            On multiple occasions, the officials coerced the platforms into
            direct action via urgent, uncompromising demands to moderate
            content And, more importantly, the officials threatened--both
            expressly and implicitly--to retaliate against inaction.
            Officials threw out the prospect of legal reforms and
            enforcement actions while subtly insinuating it would be in the
            platforms' best interests to comply. As one official put it,
            ``removing bad information'' is ``one of the easy, low-bar
            things you guys [can] do to make people like me''--that is,
            White House officials--``think you're taking action.'' When the
            officials' demands were not met, the platforms received
            promises of legal regime changes, enforcement actions, and
            other unspoken threats. That was likely coercive. . . .

            [M]any of the officials' asks were ``phrased virtually as
            orders,'' like requests to remove content ``ASAP'' or
            ``immediately.'' The threatening ``tone'' of the officials'
            commands, as well as of their ``overall interaction'' with the
            platforms, is made all the more evident when we consider the
            persistent nature of their messages. . . . [T]here is [also]
            plenty of evidence--both direct and circumstantial, considering
            the platforms' contemporaneous actions--that the platforms were
            influenced by the officials' demands. . . .

            [And] the speaker [had] ``authority over the recipient.'' [The
            White House] enforces the laws of our country, and--as the head
            of the executive branch--directs an army of Federal agencies
            that create, modify, and enforce Federal regulations At the
            very least, as agents of the executive branch, the officials'
            powers track somewhere closer to those of the commission in
            Bantam Books--they were legislatively given the power to
            ``investigate violations and recommend prosecutions.''

            [T]he officials made express threats and, at the very least,
            leaned into the inherent authority of the President's office. .
            . . But, beyond express threats, there was always an ``unspoken
            `or else.' '' [W]hen the platforms faltered, the officials
            warned them that they were ``[i]nternally considering our
            options on what to do,'' their ``concern[s] [were] shared at
            the highest (and I mean highest) levels of the [White House],''
            and the ``President has long been concerned about the power of
            large social media platforms.'' \8\
    ---------------------------------------------------------------------------
        \8\ 83 F.4th 350, 382 (5th Cir. 2023).

        The Supreme Court reversed the Fifth Circuit's decision on
    procedural grounds, so that decision is no longer binding precedent.\9\
    The Court's opinion also cast doubt on the factual findings that the
    Fifth Circuit relied on.\10\ Nonetheless, the Fifth Circuit's analysis
    is a good illustration of how courts sometimes evaluate such
    allegations of coercion.
    ---------------------------------------------------------------------------
        \9\ 603 U.S. 43 (2024).
        \10\ Id. at 60 n.4.
    ---------------------------------------------------------------------------
                           II. Government Persuasion
                            A. Often Constitutional
        Now say the government simply tries to persuade various
    intermediaries--whether today's social media platforms or, as was the
    case in the recent past, bookstores, billboards, or payment
    processors--to stop carrying certain speech, without an express or
    implied threat of retaliation. Generally speaking, courts of appeals
    have said that this does not violate the First Amendment. To offer a
    few examples:
        1. In 1980, a New York City official sent a letter urging
    department stores not to carry ``a board game titled `Public
    Assistance--Why Bother Working for a Living.' '' The letter said the
    game ``does a grave injustice to taxpayers and welfare clients alike,''
    and closes with, ``Your cooperation in keeping this game off the
    shelves of your stores would be a genuine public service.'' Not
    unconstitutional, said the Second Circuit in Hammerhead Enterprises,
    Inc. v. Brezenoff (1983):

            [T]he record indicates that Brezenoff's request to New York
            department stores to refrain from carrying Public Assistance
            was nothing more than a well-reasoned and sincere entreaty in
            support of his own political perspective Where comments of a
            government official can reasonably be interpreted as intimating
            that some form of punishment or adverse regulatory action will
            follow the failure to accede to the official's request, a valid
            claim can be stated. . . . [But] appellants cannot establish
            that this case involves either of these troubling
            situations.\11\
    ---------------------------------------------------------------------------
        \11\ 707 F.2d 33, 34, 37, 38-39 (2d Cir. 1983).

        Note, though, that Brezenoff was the administrator of New York
    City's Human Resources Administration, with no enforcement authority
    against the department stores. How might the matter have looked had he
    been the sheriff or the head of some civil enforcement agency?
        2. Not long after, the U.S. Attorney General's Commission on
    Pornography sent letters to various corporations (such as 7-Eleven)
    urging them not to sell pornographic magazines:

            The Attorney General's Commission on Pornography has held six
            hearings across the United States during the past seven months
            on issues related to pornography. During the hearing in Los
            Angeles, in October 1985, the Commission received testimony
            alleging that your company is involved in the sale or
            distribution of pornography. The Commission has determined that
            it would be appropriate to allow your company an opportunity to
            respond to the allegations prior to drafting its final report
            section on identified distributors.

            You will find a copy of the relevant testimony enclosed
            herewith. Please review the allegations and advise the
            Commission on or before March 3, 1986, if you disagree with the
            statements enclosed. Failure to respond will necessarily be
            accepted as an indication of no objection.

            Please call Ms. Genny McSweeney, Attorney, at (202) 724-7837 if
            you have any questions. Thank you for your assistance.

        Not unconstitutional, said the D.C. Circuit in Penthouse
    International, Ltd. v. Meese (1991):

            [T]he Advisory Commission had no tie to prosecutorial power nor
            authority to censor publications. The letter it sent contained
            no threat to prosecute, nor intimation of intent to proscribe
            the distribution of the publications. . . .

            We do not see why government officials may not vigorously
            criticize a publication for any reason they wish. As part of
            the duties of their office, these officials surely must be
            expected to be free to speak out to criticize practices, even
            in a condemnatory fashion, that they might not have the
            statutory or even constitutional authority to regulate. If the
            First Amendment were thought to be violated any time a private
            citizen's speech or writings were criticized by a government
            official, those officials might be virtually immobilized.\12\
    ---------------------------------------------------------------------------
        \12\ 939 F.2d 1011, 1013, 1015-1016 (D.C. Cir. 1991).

        3. In the late 1990s, a New York state legislator and a New York
    congressman accused X-Men Security--a security organization connected
    to the Nation of Islam--of various conspiracies, ``asked government
    agencies to conduct investigations into its operations, questioned X-
    Men's eligibility for an award of a contract supported by public funds,
    and advocated that X-Men not be retained.'' X-Men lost certain security
    contracts as a result. Also not unconstitutional, ruled the Second
    ---------------------------------------------------------------------------
    Circuit in X-Men Security, Inc. v. Pataki (1999):

            [J]ust as the First Amendment protects a legislator's right to
            communicate with administrative officials to provide assistance
            in securing a publicly funded contract, so too does it protect
            the legislator's right to state publicly his criticism of the
            granting of such a contract to a given entity and to urge to
            the administrators that such an award would contravene public
            policy. We see no basis on which X-Men could properly be found
            to have a constitutional right to prevent the legislators from
            exercising their own rights to speak.\13\
    ---------------------------------------------------------------------------
        \13\ 196 F.3d 56, 68, 70 (2d Cir. 1999).

        And it does appear that at least some such persuasion ought to be
    constitutionally acceptable. After all, government officials have a
    strong interest in conveying their views, including their views about
    what speech is harmful and should not be published. It's not clear
    whether they have a personal First Amendment right to do so in their
    official capacities.\14\ But there may still be real value to public
    discourse, and to their listeners, in their being able to do so--and
    thus it might not be a First Amendment violation in their asking
    intermediaries to sometimes choose to block certain speech.
    ---------------------------------------------------------------------------
        \14\ Compare Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)
    (concluding that government officials generally don't have First
    Amendment rights when exercising their official duties); and David
    Fagundes, State Actors as First Amendment Speakers, 100 Nw. U. L. Rev.
    1637 (2006) (discussing uncertainty about when state officials may have
    First Amendment rights vis-a-vis the Federal government).
    ---------------------------------------------------------------------------
        For instance, national security officials might sometimes tell a
    news outlet, ``Look, we can't force you to do anything, but if you run
    this story it will lead to deaths of intelligence sources/damage to
    national security. Could you not run the story, or fuzz over some
    details, or delay it?'' The news outlet might find that to be valuable
    information. Reporters and editors might want to avoid causing deaths
    or harming national security, especially if the bulk of the story can
    still be reported with a bit of delay or slight modification.
        Likewise, law enforcement officials might reasonably and
    permissibly tell a newspaper or broadcaster, ``If you run this story
    right now, you'll tip off the criminals we're investigating/jeopardize
    witnesses. Don't you want us to fight crime effectively?'' The
    newspaper might say yes or no, assuming there's no context to make the
    statement coercive. I doubt such a request would violate the First
    Amendment.
        Or say that a newspaper is about to run an op-ed that alleges
    governmental misconduct. A government official learns of this--perhaps
    the editors call him to get his side of the story--and says, ``That's
    nonsense, and here's the evidence to prove that.'' Or he says, ``The
    allegations are so slanted as to be deceptive or unfair; here's the
    context that shows it.'' And then adds, ``Please don't run such an
    unfair story; it would be bad for us if you did, but it would also be
    bad for your reputation, when the truth comes out, and it would be bad
    for your readers, who would be misled.''
        That is a call for an intermediary (the newspaper) to block the
    publication of a third-party item (the op-ed). However, it is unlikely
    to be unconstitutional. Indeed, the newspaper may be quite pleased to
    learn the full story and thereby avoid publishing an op-ed that would
    make the newspaper look bad.
                      B. Potential Limits: Subtle Coercion
        At the same time, there may be limits on such persuasion. The first
    comes from the reality that the coercion/persuasion line is often hazy.
    One concern about government persuasion of intermediaries is that when
    the government asks, people who are subject to regulation by the
    government may hear this as demanding. As it happens, this concern has
    arisen in at least one other First Amendment context, and the reasoning
    in that context might be applicable here as well.
        That context is labor law. Since the 1940s--early in the Court's
    modern First Amendment jurisprudence--the Court has recognized that
    ``employers' attempts to persuade to action with respect to joining or
    not joining unions are within the First Amendment's guarantee'' but not
    when ``to this persuasion other things are added which bring about
    coercion, or give it that character.'' \15\ In NLRB v. Gissel Packing
    Co. (1969), the Court made clear that the employer's power over
    employees should be considered in deciding whether the speech is likely
    to coerce:
    ---------------------------------------------------------------------------
        \15\ Thomas v. Collins, 323 U.S. 516, 537 (1945) (treating the
    matter as having been settled by NLRB v. Virginia Electric & Power Co.,
    314 U.S. 469 (1941)); Virginia Electric & Power, 314 U.S. at 477 (``The
    employer in this case is as free now as ever to take any side it may
    choose on this controversial issue. But, certainly, conduct, though
    evidenced in part by speech, may amount, in connection with other
    circumstances, to coercion within the meaning of the Act'').

            Any assessment of the precise scope of employer expression, of
            course, must be made in the context of its labor relations
            setting [A]ny balancing of [the employer's and employee's]
            rights must take into account the economic dependence of the
            employees on their employers, and the necessary tendency of the
            former, because of that relationship, to pick up intended
            implications of the latter that might be more readily dismissed
            by a more disinterested ear.\16\
    ---------------------------------------------------------------------------
        \16\ 395 U.S. 575, 617 (1969).

        Similar logic, I think, may apply when high-level executive
    officials, or those who speak for them, address intermediaries who are
    ---------------------------------------------------------------------------
    regulated by those officials or the officials' appointees:

            [A]ny balancing of [government speakers' and intermediaries']
            rights must take into account the economic dependence of the
            [intermediaries] on their [regulators], and the necessary
            tendency of the former, because of that relationship, to pick
            up intended implications of the latter that might be more
            readily dismissed by a more disinterested ear.

        This analogy would still leave government officials able to make
    requests in certain ways, just as employers remain able to speak in
    certain ways to employees about the possible consequences of
    unionization. But the officials would have to be more careful to make
    clear that the request carries no threat of retaliation.
        What sort of statement by the government would make clear that
    there is no such threat? That would doubtless turn on many factors.
    Thus, for instance, with regard to the requests sent to the social
    media platforms by CISA, the Fifth Circuit in Missouri v. Biden found
    sufficient evidence only that CISA ``significantly encouraged the
    platforms' content-moderation decisions''--the court didn't state that
    there was sufficient evidence that CISA was coercing the platforms,
    though the court did find sufficient evidence of coercion by some other
    government agencies.\17\
    ---------------------------------------------------------------------------
        \17\ See 83 F.4th at 391; cf. id. at 389 (stating, as to the FBI,
    that ``the platforms' decisions were significantly encouraged and
    coerced by the FBI'' (emphasis added)).
    ---------------------------------------------------------------------------
        I think, though, that if there were some serious concern about
    coercion, dispelling such concern would require considerably more than
    the disclaimer that CISA included in its e-mails:

            CISA affirms that it neither has nor seeks the ability to
            remove or edit what information is made available on social
            media platforms. CISA makes no recommendations about how the
            information it is sharing should be handled or used by social
            media companies. Additionally, CISA will not take any action,
            favorable or unfavorable, toward social media companies based
            on decisions about how or whether to use this information.\18\
    ---------------------------------------------------------------------------
        \18\ See The Mechanics of Government Censorship 14 (2025).

        Of course the social media companies' likely worry wouldn't have
    been that ``CISA''--an agency that itself lacks regulatory power over
    the companies--``will take . . . action . . . toward'' them. Rather,
    the worry would have been that some other, much more powerful, Federal
    government actors would take ``adverse government action,'' such as
    ``antitrust enforcement and legal reforms'' \19\ or possibly law
    enforcement action of the sort that the FBI can engage in.\20\ In light
    of this, a disclaimer pointedly limited to retaliation by CISA was
    unlikely to do much good.
    ---------------------------------------------------------------------------
        \19\ 83 F.4th at 373.
        \20\ Id. at 388-89.
    ---------------------------------------------------------------------------
          C. Potential Limits: Merger of Government and Private Power
        There is also reason to think that at least sometimes the
    Constitution does constrain the merging of government and private
    power, at least when the government tries to use that merger to bypass
    the usual constraints on its powers--even in the absence of coercion.
    And even if the Constitution itself doesn't render such merging of
    power unconstitutional, there may be good reason to try to constrain
    such merging by statute.
        To begin, let's consider an analogy, three Amendments down: the
    Fourth Amendment. Say you rummage through a roommate's papers, find
    evidence that he's committing a crime, and send it to the police.
    Because you're a private actor, you haven't violated the Fourth
    Amendment. (Whether you committed some tort or crime is a separate
    question.)\21\ Because they didn't perform the search, the police
    haven't violated the Fourth Amendment either, and the evidence from
    this ``private search'' can be used against the roommate.
    ---------------------------------------------------------------------------
        \21\ See United States v. Phillips, 32 F.4th 865, 867 (9th Cir.
    2022); Burdeau v. McDowell, 256 U.S. 465, 475-476 (1921).
    ---------------------------------------------------------------------------
        But if the police ask you to rummage through the roommate's papers,
    that rummaging may constitute a search governed by the Fourth
    Amendment. ``[I]f a state officer requests a private person to search a
    particular place or thing, and if that private person acts because of
    and within the scope of the state officer's request,'' then the search
    would be subject to the constitutional constraints applicable to
    government searches.\22\ ``Police officers may not avoid the
    requirements of the Fourth Amendment by inducing, coercing, promoting,
    or encouraging private parties to perform searches they would not
    otherwise perform.'' \23\ Coercion is only one way a private search may
    become subject to the Fourth Amendment; inducement, promotion, or
    encouragement can also suffice.
    ---------------------------------------------------------------------------
        \22\ State v. Tucker, 330 Or. 85, 90 (2000) (applying the Oregon
    Constitution's Fourth Amendment analog; police request to tow truck
    driver to search items in car being towed), followed by State v. Lien,
    364 Or. 750, 778 (2019) (police request to trash company to pick up a
    person's trash in a particular way that would facilitate its being
    searched). See also United States v. Gregory, 497 F. Supp. 3d 243 (E.D.
    Ky. 2020) (similar fact pattern to Lien).
        \23\ George v. Edholm, 752 F.3d 1206, 1215 (9th Cir. 2014) (police
    request to doctor to do a rectal search). See also United States v.
    Ziegler, 474 F.3d 1184, 1190 (9th Cir. 2007) (police request to
    employer to search employee's work computer); United States v. Rosenow,
    50 F.4th 715, 733 (9th Cir. 2022) (recognizing that, even when a
    private party's search would normally be entirely legal, the
    government's ``encouragement'' of such a search may constitute ``state
    action'').
    ---------------------------------------------------------------------------
        Indeed, in Skinner v. Railway Labor Executives' Association (1989),
    the Supreme Court held that drug tests of railway employees that were
    authorized but not required by Federal regulations were subject to
    Fourth Amendment scrutiny:

            The Government has removed all legal barriers to the testing
            authorized by Subpart D, and indeed has made plain not only its
            strong preference for testing, but also its desire to share the
            fruits of such intrusions. In addition, it has mandated that
            the railroads not bargain away the authority to perform tests
            granted by Subpart D. These are clear indices of the
            Government's encouragement, endorsement, and participation, and
            suffice to implicate the Fourth Amendment.\24\
    ---------------------------------------------------------------------------
        \24\ Skinner v. Railway Labor Executives Assn', 489 U.S. 602, 615-
    16 (1989).

        Considering the extensive regulation of railroads by the
    government, the railway companies might have felt special pressure to
    view the government's ``encouragement'' and ``endorsement'' as a
    command. Yet the Court did not rely on the theory that the government
    had indeed coerced the railroads to perform the tests. It appeared to
    be enough that it ``encourage[d], endorse[d], and participat[ed]'' in
    the tests. The same may apply to social media platforms, especially
    (but perhaps not only) in a political environment where there is talk
    of possible regulation, such as through antitrust law or by modifying
    Section 230 immunity.\25\
    ---------------------------------------------------------------------------
        \25\ See Murthy, 603 U.S. at 80-81 (Alito, J., dissenting)
    (reasoning that ``internet platforms, although rich and powerful, are
    at the same time far more vulnerable to Government pressure than other
    news sources'' because ``[t]hey are critically dependent on the
    protection provided by Sec. 230 of the Communications Decency Act of
    1996,'' which Congress might threaten to withdraw; ``[t]hey are
    vulnerable to antitrust actions''; and, ``because their substantial
    overseas operations may be subjected to tough regulation in the
    European Union and other foreign jurisdictions, they rely on the
    Federal Government's diplomatic efforts to protect their interests'').
    ---------------------------------------------------------------------------
        Likewise, ``In the Fifth Amendment context, courts have held that
    the government might violate a defendant's rights by coercing or
    encouraging a private party to extract a confession from a criminal
    defendant.'' \26\ More broadly, the Supreme Court held in Blum v.
    Yaretsky (1982), a Due Process Clause case, that ``a State normally can
    be held responsible for a private decision only when it has exercised
    coercive power or has provided such significant encouragement, either
    overt or covert, that the choice must in law be deemed to be that of
    the State.'' \27\ And in Norwood v. Harrison (1973), an Equal
    Protection Clause case, the Court viewed it as ``axiomatic that a state
    may not induce, encourage or promote private persons to accomplish what
    it is constitutionally forbidden to accomplish.'' \28\
    ---------------------------------------------------------------------------
        \26\ United States v. Folad, 877 F.3d 250, 253 (6th Cir. 2017)
    (emphasis added). See also United States v. Garlock, 19 F.3d 441, 443-
    444 (8th Cir. 1994).
        \27\ 457 U.S. 991, 1004 (1982). See also Fidelity Financial Corp.
    v. Federal Home Loan Bank of San Francisco, 792 F.2d 1432, 1435 (9th
    Cir. 1986) (emphasis added).
        \28\ 413 U.S. 455, 465 (1973) (emphasis added).
    ---------------------------------------------------------------------------
                   D. Potential Limits: Systemic Cooperation
        Might there be a difference between occasional one-off
    conversations and systematic programs? To be sure, when it comes to
    coercive threats aimed at suppressing speech, both the ad hoc and
    systematic demands are unconstitutional.\29\ Likewise, the cases
    involving government encouragement of searches by private parties find
    even ad hoc demands unconstitutional.\30\
    ---------------------------------------------------------------------------
        \29\ See Fagundes, supra note 14, at Part II.B.
        \30\ See id. at Part IV.A.
    ---------------------------------------------------------------------------
        But if courts do conclude that ad hoc requests to remove or block
    speech are constitutional, perhaps some line should still be drawn
    between those requests and systematic encouragement of such removing or
    blocking. This appears to be what the Fifth Circuit concluded in
    Missouri v. Biden, when it found that the government's speech was
    impermissible ``significant encouragement'' of speech restriction by
    platforms, even apart from the coercion argument:

            The officials had consistent and consequential interaction with
            the platforms and constantly monitored their moderation
            activities. In doing so, they repeatedly communicated their
            concerns, thoughts, and desires to the platforms. The platforms
            responded with cooperation--they invited the officials to
            meetings, roundups, and policy discussions. And, more
            importantly, they complied with the officials' requests,
            including making changes to their policies. . . .

            When the platforms' policies were not performing to the
            officials' liking, they pressed for more, persistently asking
            what ``interventions'' were being taken, ``how much content
            [was] being demoted,'' and why certain posts were not being
            removed. Eventually, the officials pressed for outright change
            to the platforms' moderation policies Beyond that, they
            relentlessly asked the platforms to remove content, even giving
            reasons as to why such content should be taken down. They also
            followed up to ensure compliance and, when met with a response,
            asked how the internal decision was made. . . .

            Consequently, it is apparent that the officials exercised
            meaningful control--via changes to the platforms' independent
            processes--over the platforms' moderation decisions. By pushing
            changes to the platforms' policies through their expansive
            relationship with and informal oversight over the platforms,
            the officials imparted a lasting influence on the platforms'
            moderation decisions without the need for any further input. In
            doing so, the officials ensured that any moderation decisions
            were not made in accordance with independent judgments guided
            by independent standards. Instead, they were encouraged by the
            officials' imposed standards.

            In sum, we find that the White House officials, in conjunction
            with the Surgeon General's office, coerced and significantly
            encouraged the platforms to moderate content. As a result, the
            platforms' actions ``must in law be deemed to be that of the
            State.'' \31\
    ---------------------------------------------------------------------------
        \31\ 83 F.4th 350, 387 (5th Cir. 2023).

        Indeed, when it came to requests for removal made by the Centers
    for Disease Control and Prevention, the Fifth Circuit concluded that
    the requests were not coercive, but still constituted unconstitutional
    ---------------------------------------------------------------------------
    significant encouragement:

            [T]he CDC was entangled in the platforms' decision-making
            processes. The CDC's relationship with the platforms began by
            defining--in ``Be On the Lookout'' meetings--what was (and was
            not) ``misinformation'' for the platforms. Specifically, CDC
            officials issued ``advisories'' to the platforms warning them
            about misinformation ``hot topics'' to be wary of. From there,
            CDC officials instructed the platforms to label disfavored
            posts with ``contextual information,'' and asked for
            ``amplification'' of approved content. That led to CDC
            officials becoming intimately involved in the various
            platforms' day-to-day moderation decisions. For example, they
            communicated about how a platform's ``moderation team'' reached
            a certain decision, how it was ``approach[ing] adding labels''
            to particular content, and how it was deploying manpower.
            Consequently, the CDC garnered an extensive relationship with
            the platforms.

            From that relationship, the CDC, through authoritative
            guidance, directed changes to the platforms' moderation
            policies. . . . [The platforms] adopted rule changes meant to
            implement the CDC's guidance. . . . Thus, the resulting content
            moderation, ``while not compelled by the state, was so
            significantly encouraged, both overtly and covertly'' by CDC
            officials that those decisions ``must in law be deemed to be
            that of the state.'' \32\
    ---------------------------------------------------------------------------
        \32\ Id. at 390.

        And the court held the same as to CISA requests.\33\
    ---------------------------------------------------------------------------
        \33\ Id. at 391.
    ---------------------------------------------------------------------------
        As noted above, the Supreme Court reversed this Fifth Circuit
    decision on procedural grounds and cast some doubt on the factual
    findings on which the Fifth Circuit relied.\34\ But the Fifth Circuit's
    legal analysis as to substantial encouragement and systematic
    entanglement may still offer a persuasive precedent.
    ---------------------------------------------------------------------------
        \34\ See 603 U.S. at 60 n.4.
    ---------------------------------------------------------------------------
        Of course, distinguishing ``consistent and consequential
    interaction'' from mere occasional interaction--such as the examples of
    constitutionally permissible requests given above--can be difficult.
    Still, constitutional law does sometimes draw such distinctions between
    occasional action and systemic action. One analogy, though distant,
    might be how the law sometimes treats administrative searches.
        Courts have upheld various kinds of searches--even ones that lack a
    warrant, probable cause, or both--on the grounds that they are targeted
    at specific public safety concerns rather than at broad law
    enforcement. Airport searches of luggage, aimed at detecting weapons,
    are one example, as the Ninth Circuit discussed in detail in United
    States v. $124,570 U.S. Currency (1989).\35\
    ---------------------------------------------------------------------------
        \35\ 873 F.2d 1240, 1244-45 (9th Cir. 1989).
    ---------------------------------------------------------------------------
        Now say that Transportation Security Administration agents, U.S.
    government employees following their normal duty to search for weapons,
    spot a suspicious amount of cash or drugs. They then alert the police
    who use this information as part of the probable cause needed to
    justify a search. That is constitutional.\36\ TSA agents are free to
    ``report information pertaining to criminal activity, as would any
    citizen.'' \37\
    ---------------------------------------------------------------------------
        \36\ See id. at 1247 n.7 (approvingly describing United States v.
    Canada, 527 F.2d 1374, 1376, 1378-79 (9th Cir. 1975)).
        \37\ Id.
    ---------------------------------------------------------------------------
        So far, so good. But say that the Drug Enforcement Administration
    comes up with a systematic program to encourage TSA agents to search
    not just for weapons, the rationale that led airport searches to be
    upheld in the first place, but also for drugs or cash. The Ninth
    Circuit held that this would be going too far:

            We see the matter as materially different where the
            communication [about the drugs or money that the TSA agent
            found] is undertaken pursuant to an established relationship,
            fostered by official policy, even more so where the
            communication is nurtured by payment of monetary rewards.\38\
    ---------------------------------------------------------------------------
        \38\ Id.

        Even if ad hoc reporting by TSA agents to the police of things
    other than weapons is permissible under the Fourth Amendment, a system
    set up to encourage such reporting is not. ``The line we draw is a fine
    one but, we believe, one that has constitutional significance.'' \39\
    ---------------------------------------------------------------------------
        \39\ Id.
    ---------------------------------------------------------------------------
        Or consider sobriety checkpoints. The Court has upheld them as
    permissible administrative seizures because they are aimed at
    protecting safety on the very roads that are being temporarily
    blocked.\40\ Yet the Court has held that the government may not set up
    drug trafficking checkpoints aimed at finding drug dealers.\41\ The
    difference in these cases, the Court held, stems from the ``difference
    in the Fourth Amendment significance of highway safety interests and
    the general interest in crime control.'' \42\
    ---------------------------------------------------------------------------
        \40\ Michigan v. Sitz, 496 U.S. 444 (1990).
        \41\ City of Indianapolis v. Edmond, 531 U.S. 32 (2000).
        \42\ Id. at 40.
    ---------------------------------------------------------------------------
        Now, if officers conducting sobriety checkpoints happen to see
    evidence of crime in plain sight--blood on the seat, an illegally
    carried gun, or, for that matter, drugs--they are free to keep
    detaining the driver and search further, based on this newly discovered
    probable cause.\43\ But say that the checkpoint is deliberately set up
    as a systematic way of searching for drugs or for other contraband.
    That would trigger additional Fourth Amendment scrutiny: ad hoc
    observation of evidence of crime, in the course of a valid
    administrative seizure (valid because the seizure is part of a drunk
    driving checkpoint, rather than a drug checkpoint or a general law
    enforcement checkpoint), may become unconstitutional if it happens in
    the course of a systematic program of search for evidence of crime.\44\
    ---------------------------------------------------------------------------
        \43\ See Texas v. Brown, 460 U.S. 730, 744 (1983) (plurality
    opinion); id. at 746 (Powell, J., concurring in the judgment); People
    v. Edwards, 101 A.D.3d 1643, 1644 (2012).
        \44\ I borrow this from United States v. Soyland, 3 F.3d 1312, 1317
    (9th Cir. 1993).
    ---------------------------------------------------------------------------
        I should stress again that these analogies are imperfect. Among
    other differences, they involve the Fourth Amendment and not the First,
    and concern attempts to systematically encourage certain action by
    government employees and not by private parties.
        But my point here is that they offer some support for the view that
    even if some actions are not subject to constitutional scrutiny when
    done on a one-off basis, they may become unconstitutional when done
    systematically. In the Fourth Amendment context, systematizing
    permissible ad hoc searches into ``an established relationship,
    fostered by official policy'' increases the threat of undue government
    intrusion on privacy, enough to change the Fourth Amendment analysis.
    Perhaps systematizing permissible ad hoc requests not to publish
    something (or to block or remove users' publications) into a similar
    official established relationship may likewise increase the threat of
    undue government interference with public debate to the point that
    First Amendment scrutiny would be required.
                      III. Reason for Congressional Action
        To be sure, courts may be reluctant to try to draw lines between
    permissible persuasion and excessively systematized persuasion. They
    might conclude that government attempts to persuade entities to
    restrict speech just aren't First Amendment violations, so long as they
    fall short of coercion.
        At the same time, even if the merger of government and social media
    platform power aimed at setting up a system for blocking, deleting, or
    otherwise deplatforming user posts isn't unconstitutional, it may be
    bad for democracy. At least, it may be the sort of thing that ought to
    be done with public scrutiny, rather than behind closed doors.
        And Congress may be able to draw lines that courts might be
    reluctant to draw. Indeed, the Committee's proposals seem to be
    promising ideas:

       Create transparency around Federal agency communication with
            private entities on issues that may affect American speech.

       Produce guidelines that clearly restrict government
            officials from influencing social media platforms' content
            moderation decisions of constitutionally protected speech.

       Establish a reporting mechanism to allow platforms to report
            if they think they may be experiencing government jawboning
            efforts of censorship or content moderation.

       Before contemplating new Federal regulation, enact
            guardrails that preclude existing Federal AI pro-grams, such as
            the NAIRR and the Center for AI Standards and Innovation
            (CAISI) (formerly known as the AI Safety Institute) from
            curtailing speech in the name of addressing harms.\45\
    ---------------------------------------------------------------------------
        \45\ See The Mechanics of Government Censorship 35 (2025).

        Any such proposals would of course have to be carefully crafted,
    and would need to be attentive to how, for instance, we may want to
    expect different things from AI platforms than from social media
    platforms. But it's good that the Committee is considering what
    Congress can do here, rather than just relying entirely on courts.
        Indeed, such new statutes would be like other Federal statutes in
    which Congress has provided more protection for constitutional values
    than the courts have expressly held is required. For instance, Congress
    has chosen to provide extra protection for religious freedom through
    the Religious Freedom Restoration Act and the Religious Land Use and
    Institutionalized Persons Act. It has chosen to provide extra
    protection for free press through the Privacy Protection Act of 1980,
    which limits searches and seizures of journalists' notes and work
    product. It has chosen to provide extra protection for Fourth Amendment
    values through statutes such as the Stored Communications Act and the
    Electronic Communications Privacy Act. Likewise, Congress may wisely
    choose to provide extra protection against government jawboning for
    ordinary citizens' free speech and free press interests as well.
        The Internet has democratized speech, restricted the power of one
    set of intermediaries (traditional media), and empowered a new set
    (social media platforms). In the process, it has made the latter
    tempting targets both for government coercion and government
    persuasion. Congress should turn its attention to whether government
    jawboning, even when constitutionally permissible, unduly risks
    increasing government power and undermining public debate.
                Sincerely,
                                                 Eugene Volokh,
                                        Thomas M. Siebel Senior Fellow,
                                   Hoover Institution, Stanford University.
              Gary T. Schwartz Distinguished Professor of Law Emeritus,
                                                        UCLA School of Law.

        Senator Schmitt. Thank you very much.
        We will now recognize Mr. Alex Berenson to deliver his
    opening statement.

     STATEMENT OF ALEX BERENSON, INDEPENDENT JOURNALIST AND AUTHOR

        Mr. Berenson. Senator Schmitt, Committee Members, thank you
    for giving me the chance to speak on this crucial topic.
        On October 28--on August 28, 2021, Twitter, as it was then
    called, permanently suspended my account, supposedly for
    violating its COVID-19 Misinformation Rules. The ban deprived
    me of my largest and most vital platform for my journalism at a
    time when many Americans were eager to hear what I had to say
    about COVID and the mRNA vaccines and viewed what I wrote
    millions of times a day.
        Twitter's decision was no accident. It came after a
    deliberate and relentless campaign by the Biden administration
    as well as at least one senior Pfizer board member to violate
    my First Amendment Rights.
        Led by Andrew M. Slavitt, an official in the Biden White
    House, the administration began pressuring Twitter to silence
    me almost as soon as President Biden took office with both
    public and private attacks on my reporting. Frontline and
    senior Twitter employees viewed what was happening to me with
    dismay.
        Going back to 2020, the company had previously defended my
    right to speak as third parties demanded I be censored because
    Twitter believed that it should be a place where free speech
    and debate were encouraged.
        Ultimately, at the time of my suspension, Twitter's top
    executives, including then Chief Executive Jack Dorsey,
    secretly believed the company should not have suspended me. But
    the Twitter lobbyist who faced the Biden administration's
    pressure most directly went around them to orchestrate my ban.
        In the words he wrote to another Twitter official just days
    before he silenced me, this lobbyist hoped, ``To keep the
    target off our back'', none of this is speculation.
        Thanks to internal e-mails and other documents that Twitter
    turned over to me before Elon Musk took over, and more
    documents that Musk voluntarily and graciously turned over
    after he bought the company, I have hard proof of everything I
    have just told you.
        In fact, after I sued Twitter in 2021, in December 2021,
    over the ban, the company admitted I had not broken its rules
    and that my tweets, quote, ``Should not have led to his
    suspension''--``my suspension''. The company even reinstated me
    in July 2022. Again, that is before Elon bought Twitter.
        By then, though, I had already suffered and so had a lot of
    people who were depending on my reporting to help them think
    about COVID vaccines and COVID lockdowns. In losing my access
    to Twitter, I lost my best chance to offer Americans my
    dissenting views on the Biden administration's COVID vaccine
    mandates, mandates that the Supreme Court would later strike
    down.
        Federal District Judge Jessica G.L. Clarke laid out all
    these facts in two rulings she made this year on a 2023 lawsuit
    I brought against the Biden administration and senior officials
    at Pfizer for its censorship--for their censorship.
        In fact, in a ruling just last week, Clarke noted that,
    ``On the merits, the Federal Government has now conceded my
    claim that the Biden administration unconstitutionally violated
    my First Amendment Rights in 2021''. Yet, in the same ruling,
    Clarke still dismissed my lawsuit. That may sound impossible. A
    Federal judge agreed my constitutional rights had apparently
    been violated, yet said my lawsuit over the violation could not
    move forward.
        But it is true. The Supreme Court has made it essentially
    impossible for me or anyone to win monetary damages for
    violations of their First Amendment Rights by the Federal
    Government. As the law now stands, Federal officials can run
    censorship campaigns, like the Biden administration carried
    out--like the one the Biden administration carried out against
    me, with impunity. At worst, they may face an injunction, but
    they will never have to pay for doing so for violating our most
    basic right, the right to speak freely.
        So it is open season for government censorship. This
    loophole is even more expansive and dangerous when it comes to
    Federal efforts to jawbone, pressure, or outright threaten
    third parties like Twitter into silencing the speech of their
    users, employees, or business partners. That is true whether
    these third parties are legacy media companies, news social
    media giants, or other types of businesses.
        As a practical matter, users are generally not privy to the
    communications between Federal officials and the companies, so
    they have no way of proving the pressure existed, or that it
    led to their censorship. My case is exceptional because of the
    documents I have proving my rights were violated. Yet even so I
    have been unable to obtain a remedy so far. And expecting
    companies to resist censorship on behalf of their users or
    business partners is unrealistic.
        My case, as well as documents the House has unearthed in
    its own censorship investigation shows social media companies
    dislike the Biden administration's efforts to force them to
    censor users, yet, they had many other interests before the
    Federal Government. They viewed sacrificing speech as the price
    they had to pay to stay in the administration's good graces.
        Every company will face this calculus, whether it is a
    Democrat or Republican, in the White House. And social media
    companies are really the most important way that independent
    Americans, that citizens can get their speech out into the
    marketplace of debate. That is why there is so much pressure on
    them.
        The truth is that as the law now stands, Federal officials
    have every reason to believe they can coerce private third
    parties to suppress speech. This is a powerful loophole that is
    no doubt enticing to politicians and officials of both parties.
    But it is wrong. Whether it affects Republicans or Democrats,
    journalists or comedians, conservatives, or liberals, or
    independents, and whether it goes by jawboning, coercion,
    pressure, or threats, this kind of censorship is wrong.
        And this committee has the chance to begin the process of
    fixing that wrong. I urge you to take it.
        [The prepared statement of Mr. Berneson follows:]

     Prepared Statement of Alex Berenson, Independent Journalist and Author
        Chairman Cruz, committee members, thank you for giving me the
    chance to speak on this crucial topic.
        On Aug. 28, 2021, Twitter (as it was then called) permanently
    suspended my account, supposedly for violating its ``COVID-19
    misinformation rules.'' The ban deprived me of the largest and most
    vital platform for my journalism--at a time when many Americans were
    eager to hear what I had to say about COVID and the mRNA vaccines and
    viewed what I wrote millions of times a day.
        But Twitter's decision was no accident. It came after a deliberate
    and relentless campaign by the Biden Administration (as well as at
    least one senior Pfizer board member) to violate my First Amendment
    rights. Led by Andrew M. Slavitt, an official in the Biden White House,
    the administration began pressuring Twitter to silence me almost as
    soon as President Biden took office, with both public and private
    attacks on my reporting.
        Both frontline and senior Twitter employees viewed what was
    happening to me with dismay. Going back to 2020, the company previously
    defended my right to speak as third parties demanded I be censored.
    Ultimately, Twitter's top executives, including then-chief executive
    Jack Dorsey, secretly believed the company should not have suspended
    me. But the Twitter lobbyist who faced the Biden Administration's
    pressure most directly went around them to orchestrate my ban. In the
    words he wrote to another Twitter official just days before he silenced
    me, the lobbyist hoped ``to keep the [White House] target off our
    back.''
        None of this is speculation. Thanks to internal e-mails and other
    documents that Twitter provided to me before Elon Musk took over--and
    more documents that Musk graciously and voluntarily turned over after
    he bought the company--I have hard proof of everything I've just told
    you. In fact, after I sued Twitter in December 2021 over the ban, the
    company admitted I had not broken its rules and ``Mr. Berenson's Tweets
    should not have led to his suspension.''
        The company even reinstated me in July 2022--again, before Musk
    bought Twitter. By then, though, the damage had already been done. In
    losing my access to Twitter, I lost my best chance to offer Americans
    my dissenting views on the Biden Administration's COVID vaccine
    mandates, mandates the Supreme Court would strike down.
        Federal District Judge Jessica G.L. Clarke laid out all these facts
    in two rulings she made this year on a 2023 lawsuit I brought against
    the Biden Administration and senior officials at Pfizer for its
    censorship. In fact, in a ruling just last week, Clarke noted that ``on
    the merits,'' the federal government has now conceded my claim the
    Biden Administration unconstitutionally violated my First Amendment
    rights in 2021.
        Yet, in the same ruling, Clarke still dismissed my lawsuit.
        This may sound impossible--a Federal judge agreed my Constitutional
    rights had apparently been violated, yet said my lawsuit over the
    violation could not move forward. Yet it's true.
        Why?
        Because the Supreme Court has made it impossible for me, or anyone,
    to win monetary damages for violations of their First Amendment rights
    by the Federal government. In fact, as the law now stands, Federal
    officials can run censorship campaigns like the one the Biden
    Administration carried out against me with near-impunity. At worst,
    they may face a judicial injunction telling them to stop violating the
    First Amendment. But neither the officials individually nor the
    government as a whole face any risk that they may have to pay for doing
    so--for violating Americans' most basic Constitutional right, the right
    to speak freely.
        It's open season for government censorship.
        This loophole is even more expansive, and thus dangerous, when it
    comes to Federal efforts to ``jawbone,'' pressure, or outright threaten
    third parties like Twitter into silencing the speech of their users,
    employees, or business partners. That's true whether those third-
    parties are legacy media companies, new social media giants, or other
    kinds of businesses.
        Why? First, as a practical matter, users are generally not privy to
    the communications between Federal officials and the companies, so they
    have no way of proving the pressure existed or that it led to their
    censorship. My case is exceptional because of the documents I have
    found proving that my rights were violated--yet even so, I have been
    unable to obtain a remedy so far.
        Second, expecting the companies to resist censorship on behalf of
    their users or business partners is unrealistic. My case, as well as
    documents from Facebook/Meta and other social media companies that the
    Select Subcommittee on the Weaponization of the Federal Government has
    unearthed in its own censorship investigation, shows that social media
    companies disliked the Biden Administration's efforts to force them to
    censor users.
        Yet they had many other interests before the Federal government.
    They viewed having to sacrifice speech from some users as the price
    they had to pay to stay in the administration's good graces. Every
    company faces this calculus, whether a Democrat or Republican is in the
    White House.
        Yet jawboning of social media companies, in particular, is a more
    successful censorship strategy than ever before. These outlets are now
    the most important way for individuals to push their ideas into the
    marketplace of debate. I saw this firsthand in 2020 and 2021 (and still
    do). Twitter gave me a megaphone I would not otherwise have had, which
    is why the Biden Administration was so desperate to take it from me.
        In 2024, the Supreme Court found that ``a government official
    cannot do indirectly what she is barred from doing directly: A
    government official cannot coerce a private party to punish or suppress
    disfavored speech on her behalf.'' But that case, NRA v Vullo, applied
    to state government officials--New York state's insurance commissioner,
    to be precise.
        The truth is that as the law now stands, Federal officials have
    every reason to believe they can coerce private third parties to
    suppress speech without facing any sanction. And following the success
    of the Biden Administration's efforts against me and other users, they
    have every reason to believe those efforts will succeed.
        This is a powerful loophole that is no doubt enticing to
    politicians and officials of both parties. But it is wrong. Whether it
    affects Republicans or Democrats, journalists or comedians,
    conservatives or liberals or independents--and whether it goes by
    ``jawboning,'' ``coercion,'' ``pressure,'' or ``threats,'' this kind of
    censorship is wrong. Only two institutions have the power to fix it--
    Congress and the Supreme Court.
        But the Supreme Court has until now declined to act, by extending
    the right to money damages to First Amendment claims.
        This committee has a chance to begin the process of doing so--to
    take the first step helping Congress protect our vital Constitutional
    rights from censorious Federal officials. I urge you to take it.
        Again, thank you for giving me the chance to tell you about my case
    and my censorship. I view the protection of free speech as a bipartisan
    issue, and this issue as one that will hopefully have a bipartisan
    solution. I am happy to take any questions.

        Senator Schmitt. Thank you.
        We will now recognize Sean Davis to deliver his opening
    statement.

         STATEMENT OF SEAN DAVIS, CHIEF EXECUTIVE OFFICER, THE
                               FEDERALIST

        Mr. Davis. It begins with censorship, it moves to the
    destruction of statues and monuments, and it ends with the
    murder of people. It begins with censorship, it moves to the
    destruction of statues and monuments, and it ends with the
    murder of people.
        The drive to silent speech does not end at a podium's edge
    or at the four corners of a page, it always advances toward the
    violent elimination of speakers. And that is because the
    authoritarian impulse to silent speech is driven by a
    totalitarian desire to seize total power by any means
    necessary, up to and including the murder of one's political
    opponents.
        This dynamic was made clear on a Tuesday afternoon in Utah
    last month when my friend, Charlie Kirk, was assassinated in
    broad daylight by a left-wing transgender ideologue who is
    enraged by Charlie's clear understanding and teaching that God
    created us male and female. That boys cannot become girls and
    girls cannot become boys. Charlie was murdered by this left-
    wing assassin who had been radicalized by demonic transgender
    ideology because he was one of the most bold and effective
    speakers in the country opposed to this evil ideology.
        Rather than see a nation unite against terroristic violence
    designed to permanently silence speech, we actually saw the
    opposite. We witnessed people praising the murder of Charlie.
    We witnessed people thanking his assassin. We even witnessed
    members of the U.S. Congress all but say that Charlie deserved
    it.
        That is not the only recent example. The Democratic
    candidate for Attorney General in Virginia was revealed last
    week to have called for the murder of one of his political
    opponents. Even worse, he also said he wanted his opponent to
    witness the murder of his own children, to watch them die in
    their mother's arms. Why? To make him feel pain for having
    different political opinions.
        How many here today condemned that insanity or publicly
    recognized that someone with such a broken moral compass is
    simply unqualified to be a state's top law enforcement officer?
    We have heard the tired cliche that riots are the language of
    the unheard. But the reality is that violence is the language
    of the unhinged and far too many people in this room are fluent
    in it.
        My name is Sean Davis and I am the CEO and Co-Founder of
    The Federalist, a conservative digital media company that
    focuses on politics, culture, and religion. I am also a victim
    of illegal and unconstitutional censorship. My company, my
    colleagues, and I have been the targets of a coordinated and
    global multiyear censorship campaign.
        In 2020, a foreign government connected outfit in the UK
    colluded with Google to demonetize The Federalist, our crime,
    we published an article in the summer of 2020 entitled, ``The
    Media Are Lying to You About Everything, Including the Riots''.
        Later that year, in the midst of a close and heated
    Presidential election campaign, government-funded efforts in
    the U.S. repeatedly censored Mollie Hemingway, The Federalist
    Editor-in-Chief and a New York Times bestselling author who is
    here behind me today, and me because of our election reporting
    and commentary. I was censored for posting a screenshot of and
    a link to a Pennsylvania Supreme Court decision requiring mail-
    in ballots received after election day and lacking a postmark
    to be counted and presumed as valid votes.
        Mollie was censored for posting a link to an article The
    Federalist published. The headline of that article, ``America
    Won't Trust Elections Until the Voter Fraud Is Investigated.''
        But the censorship did not stop there. We were also
    targeted for bankruptcy and destruction by the U.S. State
    Department and its Global Engagement Center, or GEC. Despite
    the fact that GEC was explicitly prohibited by both the U.S.
    Constitution via the First Amendment and its authorizing
    statute from targeting domestic speech, it nonetheless sought
    to drive us out of business by funding, developing, and
    distributing technologies and tools to reduce our reach, by
    bullying advertisers into blacklisting us, and many other
    conservative outlets, and by coercing big tech companies like
    Facebook, Google, and Twitter to throttle access to our
    content.
        In essence, our own government secretly and without any due
    process, charged us with thought crimes, convicted us, and
    sentenced The Federalist to death. The censorship efforts our
    government funded with our money are still being wielded
    against us today.
        I am here today to testify about the unconstitutional and
    illegal censorship of my company and my colleagues. But I am
    also here to help you understand the real-world consequences in
    flesh and in blood of the drive to silence your political
    opposition.
        It does not stop at the page's end. The effort to censor
    and silence political opposition is not the final step in the
    effort to usher in tyranny and authoritarianism. It begins with
    censorship. It moves to the destruction of statues and
    monuments, and it ends with the murder of people. And it has to
    stop. Thank you.
        [The prepared statement of Mr. Davis follows:]

      Prepared Statement of Sean Davis, CEO and Co-Founder, The Federalist
        Chairman Cruz, Ranking Member Cantwell, and members of the
    committee, thank you for inviting me to testify on behalf of First
    Amendment speech and press rights and against authoritarian censorship
    designed to shut down the free speech rights of American citizens.
        My name is Sean Davis, and I am the CEO and co-founder of The
    Federalist, a conservative digital media company focused on politics,
    culture, and religion. I am a Christian, a conservative, and a
    political commentator and reporter. I am also the victim of illegal and
    unconstitutional censorship by my government which was targeted at my
    publication, my publication, and me personally.
        The First Amendment affirms and protects five God-given rights:
    free speech, religion, press, assembly, and petition. In my capacity as
    the publisher of a major national media outlet which produces news and
    opinion, an infringement on or abridgement of any one of those five
    rights can be cataclysmic.
        Unfortunately, my publication, our writers, and I were all directly
    targeted for destruction by my own government, using my tax dollars.
    Even worse, much of the targeting was done in secret, by individuals
    and institutions who were desperate to hide their illegal and
    unconstitutional actions against us. This long-running conspiracy to
    deprive us of our God-given First Amendment rights is illegal,
    unconstitutional, and unconscionable. Sadly, many senators who sit on
    this committee either refused to condemn and fight these censorship
    efforts, or outright supported them.
        In the summer of 2020, at the behest of foreign government-
    connected organizations, Google attempted to demonetize The Federalist
    for the apparent crime of criticizing American government response to
    and media coverage of COVID-19 and the violent Black Lives Matter (BLM)
    riots that raged throughout the country. The apparent article that
    triggered this outrageous attack on us and our First Amendment rights
    was entitled, ``The Media Are Lying To You About Everything, Including
    The Riots.''
        This was all orchestrated secretly behind closed doors between a
    foreign NBC News cell and corrupt Google executives, despite the fact
    that we had broken zero rules. But that was only the beginning.
        Unbeknownst to us at the time, a government department called the
    Cybersecurity and Infrastructure Security Agency (CISA) was also
    directing and funding censorship efforts against my colleagues and me
    because of our reporting on unprecedented new election laws rammed
    through ahead of the 2020 election. This agency is supposed to prevent
    attacks on American infrastructure, but at some point its leaders
    apparently decided that its real objective was to censor American
    citizens and journalists for criticizing their own government.
        My colleagues and I were deliberately singled out for censorship
    because our own government decided our rights as citizens and members
    of the news media needed to be crushed. The agency and its partners
    used a ticketing system to flag and report social media posts that it
    wanted to be eliminated and funded efforts to badger and threaten tech
    companies, many of which had effective monopolies over online content,
    to delete social posts that the government and its partners found
    inconvenient.
        For those who know me or follow me on social media, I can be
    opinionated and provocative. But in this particular case, it wasn't
    even one of my spicier tweets that attracted the ire of Orwellian
    government censors. In a tweet targeted for censorship, I posted a
    screenshot of and a link to a Pennsylvania Supreme Court decision which
    stated that mail-in ballots received after the election and containing
    no postmark still had to be presumed as cast on-time, and counted.
    Anyone who understands basic logic can see the problems with such a
    declaration: ballots cast and mailed long after the election,
    potentially even after preliminary results were known, would still have
    to be counted, creating huge incentives to flood the system with late,
    invalid ballots.
        My tweet with the link to and screenshot of that Pennsylvania
    Supreme Court decision was censored by Twitter, and it was done so at
    the direct demand of a U.S. Federal government-sponsored censorship
    consortium. Another one of my tweets, in which I alleged that the best
    evidence that the 2020 election was being rigged was the fact that
    tweets stating the election was being rigged were being censored, was
    censored. Another ticket demanding censorship of me stated, ``[S]ame
    guy (sean davis) continues to post about this. has spread to thousands
    on [Facebook] because of Federalist article[.]''
        According to JIRA ticket data obtained and release by the House
    Judiciary Committee, at least 21 separate tickets were submitted to
    censor Twitter posts from me. Several of those tickets also demanded
    censorship by Facebook.
        Kafka-esque doesn't even begin to describe this madness.
        My colleague Mollie Hemingway, who wrote a national best-selling
    and rigorously researched and fact-checked book about 2020 election
    shenanigans, was also censored by Twitter at the demand of the Federal
    government and its partners. Multiple censorship tickets were submitted
    to shut down her social media presence. The most ridiculous example was
    a demand to censor a tweet from Mollie which contained a link to an
    article published by The Federalist. The headline of that article?
    ``America won't trust elections until the voter fraud is
    investigated.''
        Imagine how deranged and authoritarian you must be to want to
    censor a post about how addressing voter fraud is key to ensuring
    election integrity.
        Though we noticed and wrote about that censorship at the time, we
    had no idea that it was our own government which funded and targeted
    our speech for censorship, nor did we understand how often we had been
    targeted, both personally and institutionally. It was only through
    dogged investigation and oversight from people like Rep. Jim Jordan and
    then-Missouri Attorney General and now-Sen. Eric Schmitt that the
    depths of the government scheming against us even began to be plumbed.
        Again, the censorship didn't stop there, and it didn't remain
    contained within CISA. We were also targeted for outright bankruptcy
    and destruction by the U.S. State Department and its Global Engagement
    Center (GEC). Despite the fact that GEC was explicitly prohibited by
    both the U.S. Constitution via the First Amendment and by the very
    statute which created and authorized the agency from targeting domestic
    speech, it nonetheless sought to drive us out of business by funding,
    developing, and distributing technologies and tools to reduce our
    reach, by bullying advertisers into blacklisting us and many other
    conservative outlets, and by coercing Big Tech companies like Facebook,
    Twitter, and Google to throttle access to our content. In essence, our
    own government secretly and without any due process charged us with
    thoughtcrimes, convicted us, and sentenced The Federalist to death.
        We survived, but just barely.
        Once the censorship-industrial complex injected its lies into the
    bloodstream of the body politic, the effects became endemic and
    permanent. To this day, we are still dealing with the effects of their
    blatantly illegal and unconstitutional censorship efforts. Although we
    sued in Federal court nearly two years ago, we are still awaiting
    relief. Although the President and Vice President of the United States
    admitted that these illegal censorships efforts were undertaken, we are
    still awaiting relief. And although the U.S. Secretary of State
    himself, whose agency targeted The Federalist, plainly admitted in our
    very pages that the State Department did exactly what we alleged, we
    are still awaiting relief. Some members of this committee have
    supported our efforts to vindicate our rights. Many, however, haven't
    said a word in our defense, a fact which suggests that defenses of
    media millionaires like Jimmy Kimmel are based more on partisanship
    than any sort of actual belief in free speech.
        And it is worth noting that unlike Mr. Kimmel, who is employed and
    distributed by a broadcaster who is required to abide by well-known
    rules as a condition of operating a monopoly on publicly owned
    airwaves--rules that were drafted and enacted by this very legislative
    body--my colleagues and I are independent journalists who operate
    online, far outside the regulatory purview of the Federal
    Communications Commission (FCC). FCC rules and regulations, which radio
    and television broadcasters like Mr. Kimmel are required to obey, do
    not apply to us. It also takes real chutzpah, in the aftermath of the
    assassination of Charlie Kirk--who was brutally murdered while
    peacefully debating a college student about transgender ideology--to
    try and make Jimmy Kimmel a free speech martyr just to cynically change
    the subject from yet another example of left-wing violence designed to
    permanently silence not just speech, but its speakers.
        As we noted in our complaint against the State Department, we are
    the victims of one of the most audacious, manipulative, secretive, and
    gravest abuses of First Amendment rights by the Federal government in
    American history.
        I have no doubt today that we will hear words like
    ``disinformation,'' ``misinformation,'' and ``malinformation'' thrown
    around by politicians desperate to create a pretext for censoring
    speech and speakers they don't like. Make no mistake: these types of
    labels exist entirely to justify illegal and unconstitutional
    violations of the First Amendment rights of every American.
        Americans are allowed to say ridiculous things on the Internet.
    They are allowed to post things you don't think are true. They are
    allowed to publish things that are mean. They are allowed to be
    hateful. Politicians and government officials do not have the authority
    to bootstrap their way to censorship by baselessly throwing a ``Russian
    disinformation'' label on every post or news article they don't like.
    In fact, the more a particular politician dislikes a particular
    political statement, the more it is protected by the First Amendment.
    We don't really need laws to protect popular speech. It is the
    unpopular speech, the speech that criticizes government, that is most
    desperately in need of protection.
        It also is imperative that everyone lives under the exact same
    speech regime. A legal regime in which one party or one side of the
    political spectrum has free speech, while another is subjected to
    speech controls, is an abomination, and one that should not be
    tolerated. It is absurd to watch the government crack down on accurate
    reporting, like that of the New York Post, which was censored for
    reporting on Hunter Biden's laptop, and then watch publications that
    repeatedly published falsehood after falsehood not just escape
    scrutiny, but receive lucrative journalism prizes and rewards for their
    nonsense.
        I would prefer that everyone live under a legal regime that
    treasures and protects free speech and freedom of the press. In fact, I
    have fought for that for years. But I will not abide a system that
    illegally cracks down on conservative media while doing nothing to stem
    left-wing lies. Everyone should live under the same set of rules.
        The best antidote to speech you don't like is more speech. That is
    why the Founding Fathers drafted the Constitution and the Bill of
    Rights. They understood that a government could not purport to
    represent its people if it prohibited their rights to speech, assembly,
    religion, press, and petition. It is time to return to a world where we
    can say what we wish without fear of being censored, or deplatformed,
    or shot dead.
        If you woke up two weeks ago and suddenly decided you care about
    free speech, I invite you to prove it. I invite you to demonstrate to
    the world that your commitment to free speech is principled, rather
    than an attempt to change the subject because one of your famous
    millionaire friends on television received 1/1,000,000,000th of the
    treatment that conservatives have been subjected to for years. I invite
    you to condemn the nakedly illegal and unconstitutional censorship
    efforts of the last 5 years. I invite you to apologize for any past
    support of censorship. I invite you to finally stand up for speech you
    don't like from people you don't like. And I invite you to condemn any
    and all violence meant to permanently silence speech, and speakers,
    even if you hate them.
        Prove your commitment to the First Amendment is real by finally
    admitting to the censorship schemes many of you cheered, and working to
    make sure nothing like that ever happens again.

        Senator Schmitt. Thank you. We will now recognize Mr. Gene
    Kimmelman for his opening remarks.

      STATEMENT OF GENE KIMMELMAN, SENIOR FELLOW, TOBIN ECONOMIC
                     POLICY CENTER, YALE UNIVERSITY

        Mr. Kimmelman. Thank you, Mr. Chairman, Senator Cantwell,
    Members of the Committee. It is an honor to appear before you
    today.
        So as we have experienced this explosion in digital
    technology which fundamentally is transforming our media
    landscape and information ecosystem, I think the fundamental
    principles that our democracy has always relied upon remain the
    same. First, we must prevent government from censoring
    protected speech as Mr. Volokh said. Second, we must also
    prevent media and information distribution platforms from
    concentrating enough power to block the competition and
    diversity that fuels open debate in our society.
        I am worried that the current FCC is heading down a
    dangerous path on both of these principles. Recent statements
    from Chairman Carr echoing the President threatening to revoke
    broadcast licenses for presenting content unfavorable to the
    administration has chilled protected speech, and the FCC's push
    to eliminate or relax broadcast ownership rules and to welcome
    consolidation in media threatened the independence and
    diversity of local media that are critical to an informed
    citizenry.
        Just consider we have pending before us the NextStar merger
    with TEGNA, combining broadcast--national broadcast companies
    with more than 250 broadcast stations. combining multiple
    broadcast licenses in the top markets that are the most popular
    broadcast television stations, and having ownership in two-
    thirds of all markets, covering almost 80 percent of all
    households in the country, even though this appears to violate
    the limit Congress set at half that level Chairman Carr seems
    to be moving forward.
        And this is on the heels of Skye Dance backed by Oracle's
    owner, Mr. Larry Ellison, buying Paramount Global, CBS, now
    seeking to buy Warner Brothers, Discovery, more studios, more
    networks, cable channels, and Mr. Ellison appearing to pick up
    about a 20 percent stake in TikTok. And the FCC is also
    considering allowing companies to own multiple national
    networks.
        These deals, and certainly more to follow, likely threaten
    to build a form of private censorship through outsized media
    power. It is time to update the law and establish new
    guardrails to promote local, diverse, and independent media.
    The threat to democracy also comes from the dominant
    information distribution systems controlled by Google, Meta
    with Facebook, Instagram, WhatsApp, and Apple with its App
    Store.
        Here, the Trump administration has done an excellent job
    challenging these companies monopolistic behavior, continuing
    the antitrust enforcement from the Biden administration.
    However, antitrust is not enough to eliminate the enormous
    power of these text platforms. More needs to be done.
        Congress must give antitrust enforcers more tools to truly
    open up the tech information distribution platforms and modern
    media markets to robust competition. We need to reduce
    concentration of control in these markets. Private control that
    can censor just as the government can censor.
        In conclusion, I want to say it is really time for Congress
    to update the Communications Act, to jump in and put an end to
    the threat of the bullying that we are seeing from the FCC,
    which chills speech and eliminates open debate and information
    flow in our media. And it is time to stop media consolidation
    and monopolization that puts too much control over the
    marketplace of ideas into few hands.
        Thank you, Mr. Chair.
        [The prepared statement of Mr. Kimmelman follows:]

      Prepared Statement of Gene Kimmelman, Senior Fellow, Tobin Economic
    Policy Center, Yale University; Senior Fellow, Mossavar-Rahmani Center
              for Business and Government, Harvard Kennedy School
        Democracy in the United States is built upon a foundation of
    constitutional speech protections plus a process of open debate and
    elections, fueled by independent and diverse media. I believe our
    democracy cannot survive unless we prevent government from coercing or
    suppressing protected speech. Nor can it survive without strong
    competition along independent and diversely owned information and media
    distribution platforms.
        A robust marketplace of ideas requires strong protection against
    both public interference in open debate and the exercise of private
    market power that distorts or blocks public discourse. I am concerned
    that recent statements and actions from government officials, like the
    Chairman of the Federal Communications Commission (FCC), appear
    designed to unduly pressure tech platforms and media distribution
    companies to favor certain speech and suppress the views of others. I
    am equally concerned that a wave of media consolidation driven by the
    current FCC's efforts to relax or eliminate ownership rules will
    concentrate local media power in the hands of a few national companies,
    reduce the diversity of national media players, and thereby empower a
    few media tycoons to distort the most popular sources of information in
    our society.
        While strong antitrust enforcement can play a critical role to
    prevent media monopolization or excessive concentration of ownership,
    it is not enough to ensure open debate through local and diverse
    players in the media ecosystem. The Trump Administration's antitrust
    enforcement cases (which build upon the work of the Biden
    Administration) against Google's, Meta's, and Apple's monopolization
    practices are precisely what is needed to break up or restrain tech
    platform practices that harm competition and impede the free flow of
    information.
        Although many of these cases are still pending, the recent Google
    search remedy decision illustrates how cautious courts are when
    confronted with a legitimate request to require asset divestitures or
    ban on payments that have been found by the courts to be illegal in
    nature. Courts seem reticent to upend business models, even in the face
    of blatantly illegal behavior. Furthermore, antitrust was never
    designed to directly promote democracy by maximizing diverse
    marketplace voices. Antitrust is a necessary but often insufficient
    tool to sustain local, diverse media.
        That is why Congress's decision to promote local and diverse media
    through communications policy has always been so important to our
    democracy. Obviously, the explosion of digital technology has
    dramatically changed the media landscape. However, a substantial
    portion of the public still relies upon local broadcast content,
    regardless of how the content is distributed, for their daily news and
    information. More importantly, these local media play a critical role
    in promoting open public debate at the key moments when we select our
    public representatives.
        I am therefore concerned that the FCC is heading down a very
    dangerous path by suggesting that diverse and locally controlled
    broadcast media may not matter anymore. It is also disconcerting to see
    a data gathering giant (Oracle) become financially intertwined with a
    national television network (Paramount/CBS) which is seeking to
    purchase a major studio and cable channels through Warner Bros
    Discovery while picking up a substantial ownership stake in TikTok.
    Such conglomeration involving major media companies threatens media
    diversity and will likely lead to further consolidation among other
    tech and media players.
        Now is the time for Congress to step in and update the
    Communications Act and expand antitrust tools that can pry open tech
    platforms and the emerging Artificial Intelligence (AI) market to
    increase competition. I believe technological changes have blurred the
    lines between broadcast, cable, streaming, website content, and user
    generated media like YouTube. Therefore, Congress needs to delineate
    and update public duties across all media. Congress should treat all
    forms of media power equally, and establish new standards for
    independent ownership and control that promote a robust marketplace of
    ideas. In addition dominant tech platforms must be prevented from
    discriminating against those dependent on information and services
    distributed over those platforms.
        Given that Google was not constrained by the Federal District Court
    from making unlimited payments to Apple, Samsung, Motorola, or the
    wireless phone carriers to promote their search and AI services, it is
    now imperative that Congress also established guardrails to ensure that
    neither Google nor anyone else can dominate the exploding AI
    marketplace.
        It is critical that we prevent both government and private players
    from impeding the free flow of ideas in our society. Our democracy
    cannot survive without robust media competition and open debate,
    especially involving public discourse about how we govern ourselves.

        Senator Schmitt. Thank you. Thank you for testimony.
        And I guess I will just start there with just a quick
    question. So Mr. Kimmelman, you are the CEO of a group called
    Public Knowledge; is that correct?
        Mr. Kimmelman. I was at one point, sir.
        Senator Schmitt. OK. When what years were you the CEO of
    Public Knowledge?
        Mr. Kimmelman. 2014 to 2019.
        Senator Schmitt. OK. Let us just take a DeLorean back in
    time to COVID era. Do you think it is appropriate for these,
    sort of, NGOs or non-profits to work hand-in-hand with
    government agencies to flag misinformation, or disinformation,
    or malinformation?
        Mr. Kimmelman. Mr. Chairman, I have worked with NGOs for
    many, many years, and I think it is appropriate on the left and
    the right for them to present ideas to the government, to the
    major players in the marketplace about their views, that
    certainly, that is what I was involved with.
        Senator Schmitt. Well, let me get more specific then. Do
    you think it is appropriate that the White House was working
    directly through a number of different agencies to work with
    the University of Washington and Stanford information to sort
    of outsource their censorship enterprise to find out what the
    posts that they did not like, and then work with--and then
    collude with at least, or coerce social media companies to
    punish those folks?
        Mr. Kimmelman. Well, Senator, I think it is--I have seen
    the government in many instances work with private
    contractors----
        Senator Schmitt. But I am asking--I am asking about this
    instance because it was not like a you know a galaxy far, far
    away, it was like a few years ago. Do you think that is
    appropriate?
        Mr. Kimmelman. Yes, I am not familiar with the details of
    what might or might not happen there.
        Senator Schmitt. But what about the scenario I just gave
    you though?
        Mr. Kimmelman. Working with a university to----
        Senator Schmitt. To flag misinformation so that the
    government then can coerce social media companies to throttle
    or to----
        Mr. Kimmelman. I never think government should coerce
    social media companies, so I cannot imagine----
        Senator Schmitt. OK.
        Mr. Kimmelman [continuing]. That that part of it as----
        Senator Schmitt. OK. Thank you.
        Mr. Davis, your testimony described how in the summer of
    2020 Google attempted to demonetize The Federalist following
    your critiques of violent Black Lives Matter riots. it is
    documented that the Center for Countering Digital Hate, the
    CCDH, specifically worked to demonetize The Federalists for
    these critiques. Could you just describe what tactics,
    specifically, were employed to do that?
        Mr. Davis. Yes, sir. Thank you for bringing that up. So I
    believe it was in July 2020, we started receiving e-mails from
    a NBC News reporter based out of the UK, I do not remember her
    name exactly, and they were almost taunting asking for comment:
    Hey, Federalist, how does it feel knowing Google is going to--
    is about to demonetize you for hate speech, or something like
    that. I am paraphrasing.
        And this was news to us. We had not broken any rules. We
    had gotten no notifications of breaking rules that we had
    violated Google's terms and conditions, or AdSense's, or
    whatever. And so we started calling around to contacts at
    Google and learned that: Oh, yes, you are about to be
    demonetized because of hate speech was what we were told. We
    had, you know, racist, violent hate speech which was not true
    at all.
        And it was the CCDH who was working with this NBC News, I
    think it was called the Verification Unit at the time, they
    were working together and colluding with executives at Google,
    to this day I do not know who, to come in and secretly
    demonetize us. And what I found most offensive about it was
    they were all in on it. They had news articles ready to be
    written kind of crowing about how we got demonetized.
        We were able to fight back. We had a pretty robust response
    to that, and they ended up relenting. Largely, what was
    interesting was in that initial news article targeting us they
    had cited that news article, how the media are lying to you
    about literally everything including the riots. The NBC News
    ended up stealth editing that out, and they worked with Google
    to come up with a new rationale for demonetizing us, which was
    our comments were mean.
        We had an unmoderated comment section. So we ended up
    having to delete our comment section to avoid being demonetized
    by Google because a bunch of foreign-connected government
    outfits decided that they did not like what we were publishing.
        Senator Schmitt. OK. In limited time, I want to--Mr.
    Berenson, it is clear now that during the Biden administration,
    CISA, which is mentioned a lot in this report obviously,
    operated kind of a switch-boarding mechanism during this period
    flagging disfavored content from domestic sources for social
    media platforms. Based on what you have seen, how was CISA
    specifically doing this? What was the abuse really all about?
        Mr. Berenson. Well, again, I think you laid it out. You
    know, they redefined infrastructure so it was not actual
    physical infrastructure or software infrastructure it was
    things people were saying. And you know, there was a period
    very early in 2022 when they actually tried to redefine
    terrorism as quote/unquote ``misinformation'', there is a
    bulletin from February 2022 which I think DHS put out and then
    retracted under pressure.
        So you know, once you start saying that people's speech is
    terrorism, you are going down a bad path and I think--I do not
    think that is something that either party should do, honestly.
        Senator Schmitt. Thanks. Ranking Member Cantwell.
        Senator Cantwell. Thank you, Mr. Chairman. I am going to
    yield to my colleague for a second to make a statement, then I
    will finish with my questions.

                   STATEMENT OF HON. AMY KLOBUCHAR,
                      U.S. SENATOR FROM MINNESOTA

        Senator Klobuchar. Thank you. I will do my questions on the
    record because I have to leave, but I was not going to speak
    and I appreciate Senator Cantwell's willingness to let me say a
    few words here, given what happened in my state this summer.
        First of all, I think Mr. Kimmelman knows that I have been
    out front on monopoly issues, and antitrust, and making sure
    that we have true competition in the marketplace, working with
    Senator Cruz, and Senator Lee, and Senator Kennedy, and many
    others on that issue, and I continue to believe that it is a
    legitimate solution.
        Second, I think what happened with the Chair of the FCC was
    wrong in the last month. I appreciated Senator Cruz being out
    front on it. I truly do. And calling it out. And I am looking
    forward to that hearing to try to get some sense into what is
    going on there, with not just the Jimmy Kimmel moment, but many
    others.
        Third, I think that the AI piece of this, and I will ask
    some questions about this, but to me, it should not be that
    radical that we say number one that if speech is violent or it
    incites violence, that that is different than other kinds of
    speech, but that with these AI videos where you cannot even
    tell it is yourself or not, I had this experience at a hearing,
    that they could at least be labeled.
        It is always going to be litigation over whether something
    is the violent side, and the heat side, or whether it is the
    legally, constitutionally allowed speech like parody. But at
    the very least these videos should say something about prepared
    for by AI, or digitally created.
        I just happened to be late on CNN last night and Robin
    Williams' family was on one of the shows talking about how he
    is dead, and they have created AI videos that do not say
    digitally altered, that people think are real. So people should
    have the right over their own identity.
        And the last thing, when it comes to these horrific mass
    shootings and acts of violence, I have come to see them as all-
    purpose haters, which is something that the FBI actually said,
    after the enunciation, church shooting in Minnesota, because
    that shooter actually hated President Trump in the manifesto,
    hated wokeness, hated Jews, hated Muslims, hated Hispanics,
    hated Blacks, and shot these two little kids, Fletcher and
    Harper, through stained-glass windows in a Catholic church.
        Then you go to the shooting of my dear friend, and I had a
    good discussion with FBI Director Patel about this in
    judiciary. He lost his friend Charlie Kirk and we mourn that.
    And we lost our friend Melissa Hortman.
        Now, that shooter literally had a manifesto or ramblings
    that targeted mostly, and in fact all Democratic office holders
    and he went to the houses of the people that he knew--that he
    knew the addresses, and the ones that he did not he was not
    able to go to.
        He went after law firms, businesses, went after planned
    parenthood, and then left a actual letter saying that he did it
    because he was supposed to assassinate me, which is on X about
    every 5 minutes with my name with ``assassination'', which I
    think is completely not a good idea for public safety, but I
    cannot get it off.
        So the point of all this is that to say it is one side or
    the another when you look at the Cato Institute Report that
    came out this year of this extremism and what is triggering
    these, basically, mad murderers to commit these acts, whether
    it is in the Michigan temple, or whether it is Charlie Kirk in
    Utah. I just do not think it is the right approach to be like
    it is one side or the other.
        These people have been targeted, in their heads, and they
    go out and create these mass crimes and it is on us to figure
    out what is triggering them and actually do something about it
    instead of playing the blame game.
        One of my answers is an assault weapon ban or at least 21
    years and under that would have helped in Uvalde, Buffalo,
    Parkland, doing something about this instead of just blaming
    each other. Thank you.
        Senator Schmitt. Thank you. Senator Fischer.

                    STATEMENT OF HON. DEB FISCHER,
                       U.S. SENATOR FROM NEBRASKA

        Senator Fischer. Thank you, Senator Schmitt.
        Mr. Davis, government censorship in the name of fact-
    checking is an unacceptable trampling on our democratic values.
    Knowing what we know now, how should social media companies
    respond if the government comes to them to deplatform users
    based on their political opinions? What is your suggestion?
        Mr. Davis. That is a great question. Thank you for raising
    it. If I could wave a magic wand and create a solution or a
    response there, what I would say is anytime a government goes
    to a social media platform, Google, YouTube, Twitter, whatever,
    and they tell someone, you need to take this down because it is
    hate speech, or misinformation, or whatever fancy label they
    want to throw on speech they do not like, first off, those tech
    companies should tell them to take a hike. We do not censor
    anyone. We are a platform. we are not a content company.
        And then number two, I think they should have to disclose
    it to the public and the people who were targeted. I would love
    to have known in 2020 who was actually behind the censorship of
    me and my colleagues. We knew we were being censored because we
    watched it happen. We saw our posts disappear. We saw ourselves
    being shadow-banned. We did not actually know why.
        I would say to this day, we do not actually understand the
    full extent of the government effort to censor us. So I think
    there should be full disclosure following an absolute denial of
    any sort of censorship demands from government. it is totally
    inappropriate.
        Senator Fischer. Thank you. Mr. Berenson, I thank you for
    sharing your experience of being deplatformed by Twitter. it is
    a valuable story for us to hear. You spoke of a huge influence
    that you witnessed between Twitter and the White House at the
    time back in 2020. And you described your understanding that
    the company's lobbyist hoped to keep the White House target off
    their back. Can you explain, specifically, what your
    understanding of that target was? And are you aware of any
    specific threats that were made?
        Mr. Berenson. Sure. So in July 2021, as the Biden
    administration was preparing vaccine mandates, and that is sort
    of what you have to understand about the backdrop here, and
    they knew that those might be politically unpopular, they
    started pressuring the companies to deplatform people like me--
    I mean, they have been doing this, but they upped the pressure.
    And that is when President Biden said that Facebook was quote/
    unquote, ``Killing people'' by allowing people like me or RFK
    Jr. to speak.
        And you know, the biggest legal protection that social
    media companies have is what is called the Section 230, as I am
    sure you know, where they are essentially immune from lawsuits,
    from users over the decisions they make for content. So they
    have all the immunity of a traditional publisher to make
    decisions over what speech they want to carry, and so----
        Senator Fischer. Yes. But did the White House--do you have
    any of any kind of information or records? Did the White House
    specifically say what they would do to Twitter?
        Mr. Berenson. Well, so they specifically--well, they
    publicly said that they were going to reconsider Section 230.
    That was again in July. And they had privately said to Twitter
    in April, they had, based on Twitter's own records said a
    really--quote/unquote, ``A really hard question about why I was
    still being allowed to speak'', which in my--from my point of
    view, and my lawyer's point of view, that all by itself was a
    First Amendment violation, because it forced Twitter to start
    looking at me in a way that Twitter had not previously done.
    And that was in secret. And you know and I will say this I----
        Senator Fischer. And again, there was no transparency
    that----
        Mr. Berenson. No transparency----
        Senator Fischer.--as Mr. Davis spoke on.
        Mr. Berenson. Yes. So I mean, look, what I do not like what
    Brendan Carr did but he did it publicly and we can have a
    debate about it. What is really problematic is when the
    government goes in secret to these companies and targets
    individual users or individual categories of speech. And I
    think that that should not be allowed. I think that both
    parties should agree that that targeting an individual user, or
    an individual post, as you know, if it is legal, it is wrong.
        And nobody has ever said that I had said anything illegal,
    and actually I think most people now would agree that a lot of
    what I said was--has been confirmed. So I think that that is a
    pretty basic place to start.
        Senator Fischer. Thank you. Mr. Volokh, you mentioned a
    reporting mechanism that might be a promising idea for
    companies that think the government is coercing them. Can you
    describe to the Committee how such a mechanism might have
    prevented a situation that Mr. Berenson just described, and how
    would you structure that mechanism?
        Mr. Volokh. Sure. So this is a familiar line [no mic]--is
    the best disinfectant. There may in fact be certain kinds of
    requests to remove something that might be justifiable in
    certain situations, if they are not coercive, but they are
    just, kind of appealed to somebody's better instinct. Maybe,
    maybe not.
        But presumably it is something that members of this
    committee, that other Members of Congress might be interested
    in, that reporters for newspapers might say: Well, here is a
    list of all of these things that the government has been asking
    that people remove. Is it justifiable or not? Is it excessive?
    Does it show political bias? That is impossible to do if it is
    all essentially corporate secrets and government secrets.
        Senator Fischer. Is there, I am picking up on Senator
    Klobuchar's--I am over time. Can I finish? Thank you.
        Senator Klobuchar was saying, is you know, she is worried,
    as I think many of us are with AI and things that are happening
    there, and at least to get a label, at least to get a label. Do
    any of you know, are these social media companies, any of these
    companies capable of doing that to be able to identify when
    something has been tampered with, with AI, or if it is to
    totally false, to be able to do that?
        Mr. Volokh. So I think that that is a separate question but
    a very important question, there is a--what you are asking I
    think is the technical question, which is even if they were
    just to do it on their own, can they do it?
        Senator Fischer. And in that case----
        Mr. Volokh. So my understanding is that there are ways of
    determining that, they are hard to do at scale. So perhaps a
    forensic examiner might look at a video, but it does not mean
    that you can have an algorithm that will reliably do it, and
    there is going to be false positives and false negatives. There
    is also always going to be an arms race, right.
        If there is a better fake technology, better detector
    technology, better fake technology that evades the detector
    technology. I am not up on all the details, but my
    understanding is right now there is no guaranteed reliable
    mechanism of determining it all.
        Senator Fischer. Then maybe you get into the whole question
    also on, what is comedy, what is satire.
        Mr. Volokh. Yes.
        Senator Fischer. It opens up a whole, another avenue then.
        Mr. Volokh. That is absolutely right. There certainly is no
    software you can write that says, oh, this is obvious parody
    and therefore it should not be taken down or labeled.
        Senator Fischer. Thank you, sir. Thank you, Mr. Chairman.
        Senator Schmitt. Thank you, Senator Cantwell.
        Senator Cantwell. Thank you, Mr. Chairman.
        And thank you Professor Volokh for both the, you know,
    statement you made about Brendan Carr's coercive tactics and
    that that would not be appropriate, and for your
    recommendations on transparency, and rules that I think would
    be a concept of just making sure that things were clear.
        And to my colleague's comment, Senator Klobuchar.
    Definitely, one of the reasons I appreciate many things she
    said, but one of the reasons I support the Blackburn
    Legislation and joined her as a co-sponsor on the COPIED Act is
    because it gives the content holders some rights, and it shows
    who the content holders are, and even in the case of
    compensation, which is an important issue to keeping
    competition and perfect information.
        I will just note that during this debate, this Committee
    and this Body passed a public health emergency language--
    related to deceptive practice language. It was unlawful to
    engage in deceptive practices related to the treatment, cure,
    prevention, mitigation, or diagnosis related to COVID.
        Why did we do that? Why did we give that extra power?
    Because there were a lot of crazy things online, like take
    bleach, or what have you, and we wanted to make sure that we
    were being--protecting consumers against deceptive practices,
    as it related to that. That was passed with a very, very big
    bipartisan support by this this--by the Senate, and became law.
        OK. So now to this, Mr. Kimmelman, this larger issue. Even
    my colleague from the House who was Chairman of the China
    Committee, I see does not like the TikTok decision because he
    does not think it goes far enough, and banning you know the
    actual algorithm. We have this attempt by Carr to kind of
    realign the deck chairs at this moment that we have competition
    shrinking. And so that is why it is so concerning to me.
        And the unevenness. We had a hearing here, a Facebook
    whistleblower who literally said the company knew that it was
    putting--elevating hate speech as a way to increase the revenue
    for advertisers. And you know, I feel like that is--you know,
    if a newspaper or a broadcaster puts false information in the
    paper, the community will respond and that person will no
    longer be able to continue their business. But online, you do
    not even know that that is happening.
        And so making sure that we do not have, you know, these
    challenges, what do we need to do to really get people to
    understand that right now you could in a very--I mean, in a
    very vertical way have such an alignment that that influence
    that we are talking about now, of not being coercive, is
    actually done in major ways? Even as my Republican colleague in
    the House is saying he is concerned about this as it relates to
    what TikTok might be doing.
        Mr. Kimmelman. Well, um, Senator Cantwell, I think it is a
    critical issue because as the technology has changed, the
    entire media landscape has changed. So I think we have to
    update our understanding of: Where is the excess power being
    used, how is it being used? These examples you have heard today
    all relate to a gatekeeper in the media landscape that is a
    tech company. We have not always thought of them as being part
    of the same ecosystem, and I think we need to do that.
        Because if you have such enormous power over the major ways
    in which the public gets news, information, can keep up about
    whether it is their community, or matters of public health, or
    national affairs, we have got to make sure that they are
    playing by some reasonable rules, or that there is full
    competition in the marketplace to give people the checks and
    balances in the media. And that is all----
        Senator Cantwell. You do not think Professor Volokh's
    statement about transparency is a bad idea? It is a good idea.
        Mr. Kimmelman. No, it is a great idea. I think transparency
    is one element of this, but it is not enough to prevent the
    kinds of concerns about coercion and suppression if too few
    people have the megaphone, have the ability to turn on the
    microphone for the voices that need to be part of our public
    debate.
        Senator Cantwell. And are you worried about too much
    content being behind paywalls? Because I am. I am worried that
    the more of this vertical integration, and that is why, again,
    I was so concerned about Chairman Carr's comments, in addition
    to the free speech, that if you start using this power as the
    FCC Chairman, and you just allow for all of this vertical
    integration, and the next thing you know, it is kind of like on
    the sports issue you put so much of it behind a paywall, you
    know, how is the consumer just kind of constantly being short-
    changed by this whole change in the landscape?
        Mr. Kimmelman. It is a huge problem, and that is why we
    need to make sure there is adequate ways for the companies that
    really invest in news and information, and gathering the
    information that the public wants, engaging people in public
    debate, can finance that and present it, so it is not all
    dumbed down, and kind of diluted in an Internet where there is
    just such massive information flow that you cannot tell fact
    from fiction.
        Senator Cantwell. And you are talking about localism now,
    and that we make sure that we----
        Mr. Kimmelman. Absolutely. It is localism, and it is
    preventing the few companies that seem to have amassed quite a
    bit of power already from getting any larger and acting as
    gatekeepers to our public debate.
        Senator Cantwell. Thank you. Thank you, Mr. Chairman.

                   STATEMENT OF HON. BERNIE MORENO,
                         U.S. SENATOR FROM OHIO

        Senator Moreno. Thank you to all the witnesses for being
    here. If there is no objection, I would like to put into the
    record a letter sent from this committee back in 2018 to the
    Chairman of the FCC requesting that Sinclair Broadcasting
    licenses be reviewed because in the minds of the 12 Democrats,
    including two on this committee, felt that Sinclair was
    perpetuating misinformation.
        We will put that into the record.
        [The information referred to follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Moreno. Which I find given the conversations around
    Commissioner Carr, I find that decently ironic.
        Mr. Volokh, I am just----
        Senator Cantwell. Can I just make a----
        Senator Moreno. We can do it then. You had your time. So
    Mr. Volokh, you mentioned that you came to the U.S. 50 years
    ago. We, to this day, congratulations. I came to America a
    little bit more than 50 years ago, which I hate to actually say
    in public testimony, because it makes me feel old. How many TV
    stations you--you are probably like me, had to learn English
    watching TV--how many TV stations and news information sources
    were there by then?
        Mr. Volokh. I do think that----
        Senator Moreno. The button.
        Mr. Volokh. I am sorry.
        Senator Moreno. You have to hit the button so we can hear
    you.
        Mr. Volokh. The button. Sorry. When we came to LA, I think
    there were maybe six or seven VHF. And then if I twiddled the
    antenna around, you get like four or five UHF.
        Senator Moreno. Did you listen to a lot of podcasts?
        Mr. Volokh. I believe that I was not allowed to listen to
    podcasts in 1975, if that----
        Senator Moreno. Well, there was not--it did not exist. It
    did not exist.
        Mr. Volokh. Exactly.
        Senator Moreno. Did you go online and get sources from
    online sources?
        Mr. Volokh. No.
        Senator Moreno. Did you go on X, or Facebook, or Twitter?
    Did you open TikTok?
        Mr. Volokh. I did not.
        Senator Moreno. Did you go on Facebook, Instagram? None of
    that existed? Because I just find it----
        Mr. Volokh. None of that, no.
        Senator Moreno.--I just find it interesting that my
    colleagues are talking about how broadcast TV and monopolism,
    and Mr. Kimmelman, you talked about that which I thought was
    just fascinating that there is all of a sudden, this lack of
    resources to find information when there has never been more
    ways to get information than there is today.
        But Mr. Kimmelman, I have a question for you. You are over
    at the Harvard School; is that correct?
        Mr. Kimmelman. At the Kennedy School, yes, sir.
        Senator Moreno. The Kennedy School? So you would agree with
    all of us, I think, that free speech is important. You would
    agree with George Washington's comment that if freedom of
    speech is taken away, then dumb and silent, we may be led like
    sheep to the slaughter. You would agree with that, right?
        Mr. Kimmelman. Certainly.
        Senator Moreno. What are you doing about Harvard's F rating
    for free speech?
        Mr. Kimmelman. I am a fellow at the Kennedy School, I have
    a very----
        Senator Moreno. No. I mean, have you spoken to your
    colleagues? Have you made a protest? Have you rallied the
    students to say: How do we get rid of this F rating? I mean, I
    cannot imagine Harvard students would find it objectionable to
    have an F in anything. What are you doing about fixing Harvard?
        Mr. Kimmelman. There is a lot of discussion I know around
    me about trying to make sure there is an open environment for
    learning and----
        Senator Moreno. But they have an F rating, just to be
    clear. They have an F rating. Harvard University has an F
    rating in free speech. And you are here giving us lectures on
    free speech. Does not exactly--ring very hollow.
        Mr. Berenson, a quick question for you. We need to put on
    the record. What was the outrageous things that you said in
    2021 that got you thrown off Twitter? I mean, were you planning
    to overthrow the United States government? Were you creating a
    militia? Like, give me an example. Give me a flavor of the
    outrageous things that you must have said?
        Mr. Berenson. The tweet that got me banned from Twitter on
    August 28, 2021, begin, ``It does not stop infection or
    transmission''.
        Senator Moreno. What?
        Mr. Berenson. Yes.
        Senator Moreno. Are you saying that a mask--a cloth mask
    does not stop the spread of COVID, how dare you say those kinds
    of outrageous comments?
        Mr. Berenson. I said that the mRNA vaccine did not stop
    infection or transmission.
        Senator Moreno. And did it?
        Mr. Berenson. I mean, I think I might be the only person in
    this room who was not vaccinated with the mRNA vaccine. And we
    all got COVID.
        Senator Moreno. Did the vaccine stop the spread?
        Mr. Berenson. No. No, of course not.
        Senator Moreno. So you were allowed to be wrong, but you
    were right. Does that make it--now, what accountability has
    been in place for that? Like who has been held accountable for
    this?
        Mr. Berenson. Well, Twitter actually admitted that they
    should not have done that.
        Senator Moreno. Yes, you know they admitted it, but what
    accountability? Because that cost you money, that cost you
    direct----
        Mr. Berenson. Oh, yes.
        Senator Moreno.--money in your pocketbook. What
    accountability has been put in place?
        Mr. Berenson. There has been no--I mean, more important
    than accountability, I did not get to tell people what I
    thought and there were--I mean, I was getting hundreds of
    millions of views a month. People wanted to hear what I
    thought, and the Biden administration did not like it and they
    forced Twitter to ban me. And I will also say it is a way----
        Senator Moreno. So you are saying--you are saying the U.S.
    Government, elected officials, who swore an oath to the
    Constitution told private media companies to terminate your
    account which cost you your money? I assume you are not
    naturally wealthy from five generations of wealth, and that you
    actually have to work for a living, and that ability to earn an
    income was taken away from you because you dared to have an
    opinion on a vaccine?
        Mr. Berenson. I regard it as more important that I was not
    able to say what I thought. The money matters less to me. And I
    also have to say this, Pfizer made $100 billion selling that
    vaccine, and Pfizer officials cooperated or collaborated with
    the Biden administration. It is a scandal.
        Senator Moreno. Yes.
        Mr. Berenson. Let me just say one thing. If I had been
    reporting on plane crashes and Boeing had colluded with the
    Biden administration or the Trump administration, it would be a
    national scandal that a Boeing official had leaned on a social
    media company.
        Senator Moreno. Yes.
        Mr. Berenson. But Pfizer somehow got away with this.
        Senator Moreno. Yes. And in the--her opening statement, the
    Ranking Member talked extensively about protecting free speech,
    but then stated she was not referring to hate speech. I think
    what maybe my colleagues mean to say is speech that they hate.
        Mr. Berenson. That is right.
        Senator Moreno. Because it is--hate speech is in the eye of
    the beholder. Would you agree, Mr. Davis?
        Mr. Davis. I completely agree. Hate speech, misinformation,
    disinformation, they are just fancy words that people use to
    shut down speech they do not like.
        Senator Moreno. Right. So if I say that there is only--such
    thing as a man and woman, that maybe when I got to the U.S. 50-
    plus years ago, somebody would have said, why did you say that,
    like obviously there is only men and women. I come from a
    culture where our entire language is male or female, but that
    could be considered hate speech, right, if I say that?
        Mr. Davis. It was for a long time, if you said that on
    Twitter for several years you ran the risk of being censored,
    shadow-banned, or permanently suspended.
        Senator Moreno. Well, obviously we will talk more about
    this topic. I do find it interesting that my colleagues who
    were totally and completely complicit during the Biden era,
    that were absolutely applauding people being thrown off social
    media, that were saying that any commentary about a Hunter
    Biden laptop story being misinformation was considered an
    insurrectionist.
        That now all of a sudden clutch their pearls because a
    moronic, second-rate comedian who makes $16 million a year got
    fired from his job for having atrocious ratings, is somehow now
    an attack on free speech. I do not know that they have the
    moral high ground here, but thank you for your testimony.
        And I recognize the Senator from Nevada.

                    STATEMENT OF HON. JACKY ROSEN,
                        U.S. SENATOR FROM NEVADA

        Senator Rosen. Thank you. Thank you for being here today
    and speaking your mind. It is about the First Amendment.
    Appreciate that because the freedom to express yourself and
    speak your mind is the cornerstone of America. It is one of the
    main ways we distinguish ourselves from other nations. In the
    United States, you are free to criticize whomever you want,
    including government leaders, without government censorship.
        And so it is wholly appropriate and indeed necessary for
    this committee to hold oversight hearings that focus on
    protecting this critical right from being eroded by anyone. But
    that is not the focus of today's hearing. Rather than providing
    us with a forum that will evaluate truly harmful government
    censorship.
        This has become increasingly commonplace under the Trump
    administration, are undertaking an effort to settle old
    political scores against an administration that is no longer in
    power. There are issues that we have to deal with, and we do
    want to support and we must support free speech, but this
    hearing is not the place.
        Two weeks ago, I sent a letter to Chairman Cruz calling for
    the FCC Chairman to testify before this Committee after he
    threatened to revoke broadcast licenses over Jimmy Kimmel's
    comments criticizing President Trump. I was particularly
    concerned as I know the Chair was from his statements calling
    the threat mafia-like. Chairman Cruz called the threats mafia-
    like, with his clear attempt to suppress speech, a comedian.
        However, I am disappointed that that is not what is the
    focus of today's hearing. Chairman Carr's later backtracking,
    claiming there is some sort of local community exception to the
    First Amendment. There is no exception. You have free speech or
    you do not. We know those limits. There is precedent for that.
    His comments, Chairman Carr's, were reprehensible and this
    demands a full accountability, and we demand full
    accountability.
        Indeed, his weak excuses have been repeatedly contradicted
    by the President's own statements. President Trump has said
    outright that the reason the FCC should revoke broadcast
    licenses is because of negative coverage of his administration.
    I want there to be journalist that looks at things. This is the
    clearest possible violation of the First Amendment.
        The President of the United States directing an agency to
    revoke a license of networks that run a critical story of him.
    There never would have been press, or print, or TV, or radio.
    You could go back 250 years if all presidents did this.
        This is a government--this is government censorship by our
    President. Plain and simple. It is what they do in Russia. It
    is what they do in North Korea. It is what they do in China. It
    is not what we do in a democracy that has a First Amendment.
        Those attacks on free speech. They harm not only our
    democracy but our economy. Last month it was Brendan Carr's
    interference in the private business decisions of large media
    companies. But tomorrow could be tech, energy, tourism, any
    other industry could be impacted.
        In Las Vegas, we are seeing fewer international tourists
    because people are afraid to come to the U.S. under this
    administration. People planning to travel to the U.S. see this
    administration detaining people for posting something online
    that is critical of the President in another country where they
    live, and they cancel their trips to America out of fear of
    U.S. Government retaliation. And the consequences for our
    economy are substantial.
        So Mr. Kimmelman, can you discuss the direct impacts of
    infringement on speech rights, and can you tell us what you see
    as the biggest threat to the First Amendment, writ large,
    please?
        Mr. Kimmelman. Sure. Well, the threats, coercion, chill
    speech. Either they suppress directly or create an environment
    in which everyone is afraid to speak his or her mind, to engage
    in debate, to have the kind of open discussion that our
    democracy requires. So it is extremely dangerous. Obviously, as
    you point out, when the government does it directly, it is
    horrible. It is a First Amendment violation. It needs to be
    stopped.
        But it also can happen when tech platforms become too
    powerful, when they do not face competition, when they play a
    gatekeeper role. This could be the same if there is too much
    roll up of media, and it is the most popular media. Senator
    Moreno made a good point. There is a lot of--there is so much
    more out there than before. But it is not just availability. It
    is what do people rely upon? What is most popular? What do they
    need to get news and information?
        And so anywhere there is a chokehold, I think there is an
    appropriate question of: Is it too much concentration? Is it
    too much power? Does it work for our democracy? And that is
    where Congress has a role to set guardrails.
        Senator Rosen. Thank you. I see my time is up. Appreciate
    this hearing and wish that we would be having Chairman Carr
    here to discuss some of free speech and the open platforms. And
    I look forward to Chairman Cruz working with us to get that on
    the docket. Thank you.
        Senator Schmitt. Thank you, Senator. I am told that we will
    do that. We need to open the Government up first, right? That
    is the first priority.
        I will also note that I asked the Chairwoman to have Lina
    Khan come before this Committee. Never came in my two years. I
    asked for Pete Buttigieg to appear, the Secretary of
    Transportation, never appeared in my two years, but I know the
    Chairman is committed to having the FCC and the FTC here.
        Senator Blackburn.

                  STATEMENT OF HON. MARSHA BLACKBURN,
                      U.S. SENATOR FROM TENNESSEE

        Senator Blackburn. Thank you, Mr. Chairman. That is exactly
    right. we are looking forward to being able to return to
    regular order and to do oversight.
        Just one item I want to mention. There was a comment:
    Tourists are not coming because they are fearful of words.
    Tourists are not coming because they are fearful of crime. And
    there are so many stories that bear this out. When you look at
    New York City, when you look at Chicago, when you look at the
    effect that violent crime is having in some of these cities, I
    am very grateful that President Trump has made it a priority to
    address this.
        We are seeing fantastic results in Memphis from the
    increased presence that is there from the Memphis Safe Task
    Force, which is 13 Federal agencies. The Tennessee Bureau of
    Investigation, the Tennessee Highway Patrol, the National Guard
    will be going in there this week to assist the Memphis PD. They
    have arrested nearly a thousand gang members, and they have
    already started the process with indictments, and moving these
    criminals into court.
        And indeed, we are very grateful for that, and we know the
    crime level needs to come down in these big cities so people do
    want to go to these cities.
        Mr. Davis, always good to see you. Grateful that you are
    here, and for the good work that you all do. I am pleased that
    Ms. Hemingway is here today also.
        I want to talk with you a little bit because I know The
    Federalist and your team at The Federalist was constantly on
    the receiving end of some of these attacks and actions from the
    Biden administration. And I would like to hear you talk about
    why you all were on the receiving end, why you felt like you
    were on that, and why you were accused of misinformation, and
    why their goal was to always shut you up?
        And we know that the left made great sport out of shutting
    up conservatives, and attacking conservatives. And as we
    learned this week, surveilling conservatives. And of course,
    seven of my Senate colleagues and I found out that the FBI was
    surveilling us, and pulling our phone records. And I think it
    would be helpful if our colleagues across the dais wanted to
    join us in calling the FBI--the Biden-led FBI out about those
    actions.
        But lay out for me what you all experienced and why you
    felt like it was such a repeated attack on you and The
    Federalist?
        Mr. Davis. Well, thank you, Senator. It is an honor to be
    here in front of you. And wonderful to see you as always. You
    pose a great question. Why were we targeted? I am reminded of
    the quote, I think it was the baseball player Reggie Jackson:
    They do not boo nobodies. Well, they do not censor nobodies
    either. In fact, that it is the most effective voices which
    tend to be targeted for censorship.
        And at The Federalist we are extremely effective at tearing
    down false narratives and reporting the facts. We have a team
    of absolutely fearless, courageous journalists who get up every
    day to tell the truth and report the facts, especially when
    they might be facts the government does not want people to
    hear. And so they targeted us because we were effective,
    because we were exposing the lies about the Russia collusion
    hoax, about the Kavanaugh hoax, about COVID-19 lies that it
    came out of a wet market in China.
        We were exposing ridiculous new election laws that ignored
    existing laws in the Constitution in 2020. We exposed the whole
    Hunter Biden laptop thing, which was 100 percent real. It was
    not a hoax. Somebody remarked earlier that: Oh well, you have
    the market to take care of if a newspaper or a network says
    something that is not true, why people will not follow them.
    Well, we know that is not true because MSNBC and CNN, they are
    all still around. They lied repeatedly. They were not targeted
    for censorship.
        And I have to say, it is nice to be here to hear a
    bipartisan support for free speech. Man, I wish a lot of you
    all were helping us as the Biden administration was censoring
    us. We have been in Federal court for two years trying to
    vindicate our free speech rights. And I have got to tell you,
    it is pretty aggravating being an American citizen whose family
    has been here for hundreds and hundreds of years, to see
    illegal immigrants get faster action in Federal district courts
    than we have gotten.
        We are still awaiting vindication and relief. And we were
    not targeted because what we were saying was false. We were
    targeted because what we were saying was true.
        Senator Blackburn. And how much, talk to me about the
    expense of having to be tied up with trying to get your day in
    court for that period of time?
        Mr. Davis. You know, it is extensive. Thankfully we have
    lawyers who are representing us out of the goodness of their
    own hearts. But if you look at the effect of censorship over
    years, Alex made the great point that you cannot compensate
    someone for the crime of having shut them up, by unjustified
    means for years. That speech that he should have been able to
    give for years, he can never give. That that opportunity is
    gone.
        But there is also a real cost in terms of money. I cannot
    even begin to think about how many millions or tens of millions
    of dollars we lost out on because our advertisers were
    targeted, because our readers were targeted, because Facebook,
    and Google, and Twitter, and YouTube were told to throttle us.
    It has to be in the millions or tens of millions of dollars.
    Quite frankly, we are owed restitution.
        Senator Blackburn. Thank you. Thank you, Mr. Chairman.
        Senator Schmitt. Thank you. Well, I am sure you will
    support my legislation which would give a private right of
    action to a citizen to sue an individual government bureaucrat
    for suppression of speech. I think that turns the tables on the
    incentive structure that currently exists.
        Senator Markey.

                   STATEMENT OF HON. EDWARD MARKEY,
                    U.S. SENATOR FROM MASSACHUSETTS

        Senator Markey. Thank you, Mr. Chairman.
        We have heard a lot today about the Biden administration
    supposedly censoring of conservatives by talking to social
    media companies about misinformation. Republicans have wasted
    an enormous amount of time and resources over the past few
    years attempting to prove this theory correct, only for it to
    be repeatedly proven false.
        The Supreme Court shot down their big lawsuit against the
    Biden administration in a 6 to 3 vote. Their big House
    Judiciary Committee investigation came up empty. And in the
    Chairman's Report last week, the supposedly incriminating e-
    mails from Biden administration officials pressuring the big
    tech platforms to censor conservatives, including--included
    explicit disclaimers that the officials were not threatening
    any action against any platform. Strike one, strike two, strike
    three, you are out, Republican theory of censorship.
        Since my Republican colleagues seem confused about what
    actual government censorship looks like, I thought I could show
    a few of them to you. It is not just the mafia boss threats
    from Brendan Carr at the FCC to Disney and ABC, on six
    different occasions Donald Trump took office and he now has
    posted on Truth Social explicitly calling for the Federal
    Communications Commission to revoke broadcast station licenses
    owned by major networks over their editorial decisions.
        On February 6, Trump said CBS should, quote, ``Lose its
    licenses'' over its interview of Vice President Kamala Harris
    in the fall of 2024. Just over TWO months later, on April 13,
    Trump again said ``CBS should lose its license for its Harris
    interview''. On July 26, Trump wrote: ``Networks are not
    allowed to be political pawns for the Democratic Party''.
        It has become so outrageous that in my opinion, their
    licenses could and should be revoked. On August 24, that was a
    big day for unconstitutional threats. Twice in under an hour,
    Trump said that ``ABC and NBC should lose their licenses''. And
    then just last Sunday, Trump said the FCC should quote, ``Look
    into the license of NBC''.
        Mr. Kimmelman, do you agree that the explicit threats from
    the President of the United States against broadcasters are far
    more dangerous than e-mails from the Biden administration
    officials identifying online misinformation?
        Mr. Kimmelman. Yes.
        Senator Markey. Mr. Kimmelman, how many times did President
    Biden threaten to revoke a broadcast license in our country?
        Mr. Kimmelman. None to my knowledge.
        Senator Markey. Mr. Kimmelman, how many times did President
    Biden publicly direct his FCC Chairman to look into a
    broadcaster's license?
        Mr. Kimmelman. None to my knowledge.
        Senator Markey. Again, zero. This hearing is a farce. We
    are not focusing upon the imminent threat to the First
    Amendment. The beating heart of democracy, freedom of speech,
    freedom of press. That is what this hearing should be about.
    What is going on at the FCC right now.
        We are relitigating an issue that the Supreme Court has
    already decided, that in fact independent analysts have
    debunked even as President Trump and Federal Communications
    Chairman Brendan Carr and other Trump officials wage a war on
    free speech that this country has not seen since the McCarthy
    Era in the 1950s. Like during that Red Scare, if you are a
    voice of dissent in this country, you have a target on your
    back. And they let you know you have a target on your back if
    you speak up.
        Law firms, universities, protesters, news media, all have
    faced this administration's wrath for their political speech.
    These threats are real. They are scary and they undermine our
    democracy. The President is threatening the free speech of the
    broadcasters in our country every time they dare to run some
    news story that questions their judgment as an administration.
        Yet, we are wasting time here trying to distract the
    American people with old e-mails from the Biden administration,
    while Chairman Carr turns the FCC into the Federal Censorship
    Commission, threatening free speech, censoring free speech in
    our country, allowing Donald Trump to continue with his direct
    attacks on the First Amendment in our country.
        This is an urgent crisis for our country. Our democracy is
    at risk when the First Amendment is being challenged so
    fundamentally by the President out of the White House and
    instructing his Chairman of the Federal Communications
    Commission to revoke the licenses of anyone who dares run any
    program that runs contrary to his views. That is what we should
    be focusing upon right now. That is the threat to our
    democracy.
        Thank you, Mr. Chairman.
        Senator Schmitt. Thank you, Senator. And a mixed
    sportsman----
        Senator Moreno. Mr. Chairman? Mr. Chairman, just a quick
    question to my colleague, just 5 seconds. Did you sign on to
    that letter asking the FCC to revoke the license of Sinclair
    Broadcasting in 2018?
        Senator Markey. I will have to go in to review that, but
    from my perspective, what Trump is doing right now at a
    Presidential level, ordering the FCC to act is absolutely an
    imminent threat to our democracy.
        Senator Schmitt. OK. And I also mixing sports metaphors on
    your strikes. I am going to throw the red flag because the
    Federal District Court, I know something about this, said that
    the Biden administration had engaged in the worst example of
    violation of the First Amendment in American history. That
    decision was upheld by the Fifth Circuit. The Supreme Court did
    not rule against it. It sent it down. It did not rule on the
    merits. It sent it down for a standing issue.
        So Senator Peters.

                    STATEMENT OF HON. GARY PETERS,
                       U.S. SENATOR FROM MICHIGAN

        Senator Peters. Thank you, Mr. Chairman. I had first just
    like to start by making a very clear statement. Government
    censorship is wrong. Full stop. Never should be should be
    tolerated. That should be no matter what side of the aisle that
    you are on. I think we can agree that the government takes when
    it--when government takes adverse action against speech that it
    dislikes, that is bad for all Americans, and it is counter to
    the fundamental values that this country stands for.
        As Ranking Member of Homeland Security and Governmental
    Affairs Committee, I have reviewed thousands of pages of
    documents, including testimony from the cybersecurity and
    infrastructure agency employees. And I will say that I simply
    do not agree that CISA, the agency, has worked in a coordinated
    effort to censor American speech. And the Supreme Court has
    basically agreed with that finding.
        However, if there is evidence, if there is evidence of
    wrongdoing on the part of anyone in previous administrations, I
    want to address it and I will work with folks on this panel to
    do that. Protecting free speech should not be--should not be a
    partisan issue. And that is why I am disappointed that instead
    of having the FCC here today to discuss what are urgent and I
    believe a flagrant violation of America's First Amendment
    rights, as my colleague just mentioned before me, instead we
    are rehashing debunked claims regarding activities at CISA from
    2018 to 2022.
        Since it was created in 2018, CISA has protected our Nation
    against cyber criminals and foreign adversaries who are
    constantly, constantly seeking to breach critical networks and
    steal America's most sensitive personal information. And
    unfortunately, today we are hearing claims that have been
    debunked about the Agency's mission and its vital work.
        The Supreme Court decision in Murthy v. Missouri found with
    regard to CISA, quote, ``The evidence does not support the
    conclusions that the relevant plaintiff made that CISA had
    violated the First Amendment Rights.'' So it is a Supreme Court
    decision.
        None of the documents I reviewed included instructions for
    the social media platforms to respond to CISA's questions on
    flagged content, nor did they attempt to cover up their
    interaction in some way with these companies.
        So it is concerning to me that the Committee would choose
    to focus on a backward-looking claim at a time when today,
    currently, we are seeing unprecedented efforts to wield
    government power as a tool to suppress free speech and stifle
    legitimate criticism, and legitimate political discourse.
        In recent months, the Trump administration has revoked
    media access, revoked media access, got to say it again, over
    news coverage that did not flatter the President. Oh, my gosh,
    horrible. You did not flatter the President. You cannot have
    media access. That is a high crime and misdemeanor, apparently.
    He also sued media outlets who publish content that the
    President does not agree with. And he has launched baseless
    investigations into the President's perceived political
    enemies.
        In one instance, the President's FCC Chair, Brendan Carr,
    threatened to revoke the broadcast licenses of ABA [sic]
    affiliates over comments made by a comedian. Oh, my, gosh,
    horrible, comedian comments. Revoke that license. President did
    not like the comedy.
        Let us be clear, these acts are unprecedented.
    Unprecedented in American history, and they rightfully raise
    alarms, I think, for every American. Thousands of Michiganders
    have reached out to my office saying that we must hold the
    Trump administration accountable to ensure that these abuses of
    power are not left unchecked.
        And I certainly hope that the Chairman of this Committee,
    and members of the Committee will devote their efforts to
    examining these abuses that I mentioned, regardless of who
    commits them because we must all stand up for First Amendment
    rights in the face of unprecedented overreach. And it is right
    to call out wherever we see it, no matter who is saying it, no
    matter what administration, but let us not ignore what we are
    seeing in front of us right now, constantly, in the media.
        So Mr. Kimmelman, a quick question. After threatening
    regulatory action against ABC affiliates if it did not suspend
    Jimmy Kimmel, FCC Chair Brendan Carr said, quote, ``If you are
    going to have a license from the FCC, we expect you to broadly
    serve the public interest''; end of quote.
        So my question for you, sir, is there precedent for the FCC
    using the public interest convenience and necessity standard in
    the Communications Act to stifle First Amendment protected
    speech? And how has the FCC historically interpreted the public
    interest? How is this different?
        Mr. Kimmelman. Not to my knowledge, Senator. The FCC has
    used--it is a public interest standard--the FCC has used it
    very carefully. There is specific direction in the
    Communications Act beyond the Constitution itself of Congress
    reminding the FCC not to stifle speech, not to impede First
    Amendment rights. And the FCC has been very careful in that
    regard.
        Senator Peters. So the comments made by the current FCC
    Chair is simply unprecedented, in all of your knowledge of past
    actions?
        Mr. Kimmelman. In my experience, Senator, I have been doing
    this for more than 45 years. I have never seen anything like
    that.
        Senator Peters. That is perhaps why it was so shocking to
    Americans all over this country, but apparently not to some
    individuals serving in the U.S. Senate.
        Thank you. Thank you, Mr. Chairman.
        Senator Schmitt. Thank you, Senator. Senator Lujan.

                   STATEMENT OF HON. BEN RAY LUJAN,
                      U.S. SENATOR FROM NEW MEXICO

        Senator Lujan. Thank you, Mr. Chairman. Mr. Chairman,
    before I begin, one of my colleagues raised a letter that was
    sent to the FCC back in 2018, that was signed by Democrats. I
    do not know how many of you know who the Chair of the FCC was
    in 2018. Do any of you know? Does the name Ajit Pai sound
    familiar?
        You know who was president in 2018? Donald Trump. I am
    sorry if I stumped you all. It was Chairman Pai that denied
    this thing. And Chairman Pai in his order, he said something
    along the lines of: What was submitted to the FCC lacked
    candor.
        It is funny to me how there are so many legal ways to call
    a lie a lie. When the FCC says a submission lacks candor, it
    means that it intentionally provided false or misleading
    information omitting crucial facts. Just so that the record is
    straight.
        Mr. Volokh, just a few weeks ago, the Federal
    Communications Commission Chairman, Brendan Carr, made several
    statements. You heard a lot of them today with regulatory
    action over remarks made by Jimmy Kimmel if they, quote, ``Did
    not take action''. In his own words, Chairman Carr said, quote,
    ``We can do this the easy way or the hard way.''
        Now, to be clear, ABC can suspend Jimmy Kimmel's show for
    whatever reason they want. However, the fact pattern that led
    ABC to suspend Jimmy Kimmel's show involved a government
    official, in this case FCC Chair Carr, making direct threats.
        As you have written, quote, ``But if the Government coerced
    ABC into suspending the show through threats or of retaliation,
    that would have likely violated the First Amendment.''
        Yes, or no, if ABC acted to remove Jimmy Kimmel because of
    FCC Chairman Carr's threats, would Carr's actions violate the
    First Amendment?
        Mr. Volokh. Yes, I think so.
        Senator Lujan. Unfortunately, the events from a few weeks
    ago related to Kimmel's show was not the first time that
    Chairman Carr has weaponized the FCC against broadcasters since
    he took office.
        Mr. Kimmelman, I would like for you to help get some facts
    on the record. I think you answered these to Chairman Markey,
    but questions sometimes need to be heard twice, and as the
    responses. Did President Biden ever direct Chair Rosenworcel to
    investigate a media company, pull their license, and: Impose
    the maximum fines and punishment, by the way that is a quote
    for from Donald Trump, for their unlawful and illegal behavior
    immediately after threatening to sue that company?
        Mr. Kimmelman. No, Senator.
        Senator Lujan. Did President Biden suggest Chair
    Rosenworcel should revoke broadcaster licenses for giving him,
    quote, ``Bad publicity''?
        Mr. Kimmelman. No, sir.
        Senator Lujan. Did Chairman Carr reinstate complaints
    against NBC, ABC, and CBS for election coverage that were
    dismissed by the prior FCC?
        Mr. Kimmelman. Yes, Senator.
        Senator Lujan. Did Chairman Carr launch investigations into
    local NPR, PBS stations alleging that they could be violating
    Federal Law by airing commercials?
        Mr. Kimmelman. Yes, Senator.
        Senator Lujan. Has Chairman Carr openly threatened to
    remove Comcast broadcast license over a news coverage?
        Mr. Kimmelman. Yes, Senator.
        Senator Lujan. Now look, what is disappointing is that is
    just a sample of what is recently happened. And I appreciate
    this hearing. I think this was a good hearing. There are a few
    of us that actually authored legislation to say FCC, keep your
    hands off of these media companies. Protect the First
    Amendment. Follow the law. I hope that is something that you
    all will take a look at and see if maybe there is
    bipartisanship. And if anyone is worried about doing it under
    this president, let us say the next president, let us just say
    let us take this off the table. So I certainly hope that is
    something that we can all do together.
        Now, Mr. Kimmelman, President Trump has developed a habit
    of suing media companies if they report or publish content he
    does not like. He sued CNN, ABC, CBS, Washington Post, Wall
    Street Journal. I mean, it goes on and on. Trump even sued the
    Pulitzer Prize winner to the New York Times and Washington Post
    for their reporting about Russian interference in the 2016
    election.
        Now, some of the media companies such as ABC and CBS chose
    to settle, others are still fighting. Even if a lawsuit is
    baseless, what effect does it have on the opposing part party,
    Mr. Kimmelman?
        Mr. Kimmelman. Senator, it has an enormous chilling effect.
    Even as you have heard from these, my colleagues on this panel
    here in a different context, it is overwhelming to take on the
    government even if you think you can vindicate your rights. It
    is a daunting task, and it tends to pull people away from
    presenting the views, or actually trying to vindicate their
    rights because it is such an overwhelmingly costly endeavor.
        Senator Lujan. Look, I think it is fact that Meta paid $22
    million to President Trump to settle a lawsuit. Did Paramount
    pay, yes, $16 million to President Trump as well? after
    Skydance settled, there was a merger approved within days as
    well.
        As a matter of fact, my team looked into the last time that
    a president sued one of these media companies. They had to go
    back to Teddy Roosevelt to find it. And do you know how much
    the settlement was for? Six cents.
        Anyhow, there is a little trivia for you all as well. Look,
    as my time concludes. Mr. Davis, I do not know if you have ever
    been asked this. I cannot find anywhere on the record where you
    have answered it. Who won the 2024 election in the United
    States of America?
        Mr. Davis. Who won the 2024 election?
        Senator Lujan. Yes, for President?
        Mr. Davis. Joe Biden was elected President.
        Senator Lujan. In 2024?
        Mr. Davis. Oh. Excuse me. sorry, had 2020----
        Senator Lujan. Now, misinformation right there. So let us
    set the record straight. Who won the 2024 election?
        Mr. Davis. I was in government censorship mode. Donald
    Trump won the 2024 election.
        Senator Lujan. Who won the 2020 election?
        Mr. Davis. Joe Biden was elected President in 2020.
        Senator Lujan. I appreciate that very much.
        Mr. Chairman, I yield back.
        Senator Schmitt. Thank you. Well, since we are doing some
    Presidential history, Mr. Davis, could you name the last
    president that was a prosecutor attempted to throw in jail for
    the rest of his life and impoverish his family, has that ever
    happened?
        Mr. Davis. Yes, I recall Donald Trump being threatened,
    right----
        Senator Schmitt. The only one, not even Teddy Roosevelt.
    Since we are going back in time. I do want to ask you, you Mr.
    Kimmelman, because just as a follow up for, and I am going to
    get to you just very quickly. The question was a president
    suing a news organization and you said that the government
    taking that on would have a chilling effect. You are not
    arguing that an individual citizen as President Trump suing a
    media company for lies is a threat to the First Amendment,
    right?
        Mr. Kimmelman. No. No, I am not.
        Senator Schmitt. OK. Thank you.
        Senator Blunt Rochester.

                STATEMENT OF HON. LISA BLUNT ROCHESTER,
                       U.S. SENATOR FROM DELAWARE

        Senator Blunt Rochester. Thank you Mr. Chairman. To my
    colleagues, yesterday there was a split screen on the news.
    Coverage of committee hearings and a shutdown clock. It was a
    tale of two realities. Republicans continue to call for
    hearings like it is business as usual, while Americans are
    literally living in the midst of a shutdown that jeopardizes
    their health, that jeopardizes their jobs, and the services
    that Americans rely on.
        So the issues before us are vitally important, but our
    number one priority in this moment should be reopening the
    government and restoring people's healthcare.
        So today, I want to use my time to remind all of us what is
    at stake. We are in a pivotal moment. Energy costs are up. Food
    prices are up. The rent has gone up for many. And millions of
    Americans in red states and blue states alike are on the brink
    of their health care costs doubling or losing it altogether.
    From small businesses, to farmers, to ranchers, to moms and
    dads, at this very moment, Americans across our Nation are
    making some very difficult decisions about how to make ends
    meet.
        We can fix this. But it requires negotiations. It requires
    us all to do our jobs, and to find a path forward together. We
    can reopen the Government. We can restore health care for the
    millions of Americans who are counting on us. But it requires
    urgency, and it requires trust, and it requires willingness to
    come to the table now.
        My Republican colleagues control the White House, the
    House, and the Senate. The ball is in your court. Let us make a
    deal.
        Thank you. And I yield back, Mr. Chairman.
        Senator Schmitt. Thank you, Senator. I want to ask just a
    couple of questions before we close out here, because this is a
    topic of great interest to me.
        Mr. Davis, obviously this agenda that was at work cost you
    a lot, critical resources, for your publication, your family.
    Given organizations like, I mean, there are so many of these
    that I just do not have time to go into them. I mean, the truth
    of the matter is what was uncovered was that, you know, we took
    their deposition.
        The CDC had approved words and phrases that social media
    companies could use in this secret portal that was established
    between the government and these social media companies
    conveyed this, and if people utter this phrase, I mean, this is
    sort of like--this is prior restraint, sort of like this is
    what you will take down ahead of time.
        CISA was very much involved in this. You have an alphabet
    soup of agencies most people have never heard of that were
    weaponized against millions of voices in this country. We talk
    about President Trump a lot but there is just a lot of just
    people who were online who had questions about forced masking
    of kids, or the vaccine mandate all those sorts of things and
    they were throttled or taken down.
        So given what you knew about organizations like--the
    Election Integrity Project, that is another one, in
    collaboration with CISA and received taxpayer funding, how are
    these NGOs still working currently to harm individuals from
    speaking their mind, particularly conservatives?
        Mr. Davis. Yes, it is a great question. The thing about
    these censorship tools, and technologies, and efforts is they
    are a little bit like injecting something into the body's
    bloodstream. They inject it in, it is in there, it is working
    its thing. And just because you pull the needle out does not
    mean the effects are gone. A lot of these organizations are
    still out there using technologies, and tools, that were
    deliberately funded and distributed by the Federal Government
    for the purpose of censoring people like me, people like Alex
    Berenson, people like my colleague Mollie Hemingway.
        I do not know if we will ever actually be free of the
    effects of this censorship industrial complex that the previous
    administration created. I do not know if we will ever be free
    of the horrible effect that it created. The horrible dampening
    and abridgement of our speech that we were forced to endure,
    secretly, for years and the extent of which we still do not
    fully know.
        Senator Schmitt. Mr. Berenson, I want to ask you. What is
    the most--in your kind of review of all this stuff after the
    fact, what is the single--it is hard to probably pick one--what
    is the most shocking thing that sort of you uncovered or found
    out about this whole thing, your experience?
        Mr. Berenson. That the White House would directly target me
    as an individual, you know, and again RFK. I think the White
    House, the Federal Government has tremendous power it is more
    than it should go out there and say what it thinks, and if it
    wants to promote mask, or whatever it wants to promote,
    obviously it has every right to do that, but to target
    individuals or target entire classes of speech I just do not
    understand how anybody thought that was OK.
        And clearly, I will tell you actually what the most
    stunning thing was. The companies did not like it. OK. You had
    private companies saying: Hey, we are worried about the First
    Amendment. You had you had a British politician, the former
    deputy prime minister of Britain saying to the White House: I
    think there is a problem here. And the White House said: Oh.
    No, do not worry about it.
        Senator Schmitt. And then last, then I will get to Senator
    Hickenlooper.
        Mr. Volokh, I want to ask you. The NIST, AI Risk Management
    Framework Guidance advises developers, this is a government
    agency, advises developers to mitigate risks related to quote,
    ``Harmful bias'' and content that may not, quote, ``distinguish
    fact from opinion or fiction''. From a First Amendment
    perspective, what is the danger of the government suggesting
    that these AI companies or other platforms should filter out
    quote/unquote ``harm'', or quote/unquote, ``bias''?
        Mr. Volokh. Well, if the government--I am sorry--if the
    government were to mandate that AI companies restrict their
    outputs in particular ways, I think that would violate the
    First Amendment partly because of the rights of the companies,
    but partly because of the rights of users, users as listeners,
    users as people who would want to use the AI to create their
    own speech.
        At the same time, when it comes to government procurement
    decisions, government needs to get AI for its own purposes, it
    has to insist that the AIs provide accurate information. I am
    still----
        Senator Schmitt. You understand the danger of that though,
    right?
        Mr. Volokh. There is definitely a danger, but at the same
    time, again, the government as buyer, the purpose of AI is to
    provide accurate information. Social media, I think the main
    purpose is to provide information that users supply. It is to
    provide, I think, should be a largely unfiltered channel----
        Senator Schmitt. A passthrough platform----
        Mr. Volokh. Right.
        Senator Schmitt.--which is why they are given the Section
    230 protections in the first place, correct?
        Mr. Volokh. Well, I do think that that is the--that that is
    a good model as a passthrough platform. But AI cannot be to be
    effective a passthrough platform. It has to make decisions that
    we hope are decisions in favor of more accurate information.
    Otherwise, the government, as a user of AI, will be constantly
    deceived by it.
        So I think as in its procurement capacity the government
    needs to be able to insist that the AI companies do what it
    takes to provide more accurate information, and to fight indeed
    misinformation in their own output. That is something that is
    required. And indeed, AI companies do not have Section 230
    immunity in that context, that we----
        Senator Schmitt. Correct. And I suppose--I think this is
    going to be a big issue, whether you call it Woke AI, whatever.
        Mr. Volokh. Um-hum.
        Senator Schmitt. The previous administration, one of the
    untold stories to lock in, and I actually agree with Mr.
    Kimmelman on this point, to lock in the incumbents and the
    monopolies in exchange for that was to have algorithms that
    locked in this bias. And that is a very, very dangerous road to
    go down. So I do not think this is the last we are going to--is
    not really the purpose of this hearing, but since we are having
    the discussion, I think it is really kind of an interesting and
    important thing.
        So, Senator Hickenlooper.

                 STATEMENT OF HON. JOHN HICKENLOOPER,
                       U.S. SENATOR FROM COLORADO

        Senator Hickenlooper. Thank you, Mr. Chair, and I agree
    completely that what we should be looking at is the algorithms
    as much as the speech because those algorithms are going to
    control what we get. And in a funny way that is an abrasive and
    intrusive form of speech that has almost nothing to do with
    your freedoms.
        Let me just start just by saying that the First Amendment
    to most of us is a bedrock of our country, it is a bedrock of a
    healthy democracy. It protects people from government
    censorship at every level. It provides free speech, but it is
    not unlimited. And we know that speech encourages violence,
    spreads lies from foreign enemies, or defrauds people, a fire
    in a crowded theatre, that that is not protected.
        But this freedom should be nonpartisan. It is, you know,
    whether you are Republicans or Democrats are in power, we
    should all remain united in stopping these genuine threats to
    the fundamental civil rights of our society. People in this
    country should be free to speak their minds without pressure,
    without censorship. Not from government, not from government
    agencies or policies, not from companies acting under political
    influence.
        What worries me is that some claim to defend free speech
    only when it helps their political party and ignore it when it
    silences others. And I think it is worth reiterating that we
    are not here to pick sides, it is to make sure that we protect
    everyone's right to speak freely no matter who they are, what
    they believe, or what they are saying.
        Let me start just by talking a little bit about campus. You
    know, I went to a small liberal arts college in Middletown,
    Connecticut, the famous Wesleyan University, and they, like
    every school had to navigate a lot of this in the last couple
    years. We have seen an increase in people calling for imposing
    bans on peaceful organizing related to issues such as the war
    in Gaza, or Black Lives Matter.
        I think we also need to recognize our duty to protect the
    rights of conservative views that are expressed on college
    campuses. I know that Wesleyans worked very hard to make sure
    that they get both sides. But not everyone has. And whether we
    agree or disagree with each other, our right to that freedom of
    speech should be defended loudly and consistently. I think as
    long as we all feel that our safety is protected from threats
    of violence, of unconscionable violence.
        So let me start, Mr. Berenson, regardless of ideology, as
    long as individuals or groups are not inciting violence with
    the intent to harm others, should they not have the same rights
    to free speech?
        Mr. Berenson. Yes.
        Senator Hickenlooper. Not a very complicated question, but
    it is one of those ones that I feel like the more times you can
    ask it on the record, each time you do that, it builds a little
    bit of a better foundation.
        Mr. Davis, you have defended conservative speech online.
    Would you extend that same defense to college students
    expressing their views about the U.S. foreign policy, or
    calling for racial justice, if their speech was censored by a
    state government?
        Mr. Davis. Yes, I do not think American citizens should be
    subjected to censorship by their government anywhere for any
    reason.
        Senator Hickenlooper. I just want to make sure that is on
    the record. I was pretty sure what that answer would be. You
    know, we have seen some disinformation campaigns from foreign
    governments. U.S. Government under both Republicans and
    Democrats have worked hard to limit, counter foreign
    propaganda--and counter foreign propaganda, they are especially
    important. These efforts are especially important when it comes
    to stopping these disinformation campaigns that, oftentimes,
    are trying to interfere in our elections.
        Under the first Trump administration, the FCC even proposed
    to require the mandatory disclosure of all foreign sponsored
    content broadcast over TV or radio. Again, there are some that
    argue that that disclosure would in fact be a form of
    limitation. I am not saying that myself.
        Now, Mr. Berenson, again, would you support the government
    having zero communication with companies about foreign
    disinformation campaigns that could affect U.S. elections or
    public safety?
        Mr. Berenson. I mean, I have not really thought about that.
    Zero? I do not know. There might be a time when it would be
    reasonable. But I mean, you said foreign, right?
        Senator Hickenlooper. Yes.
        Mr. Berenson. So the First Amendment does not--is not
    implicated. The problem as we have seen in the last 10 years,
    it is very easy to go down a slippery slope and you start
    interfering in American speech. So I think you have to be very
    careful.
        Senator Hickenlooper. That is where that question comes
    from, especially when sometimes that disinformation is our
    foreign rivals or adversaries of Iran, Russia, China.
        Last question, Mr. Volokh, is there not a difference
    between coercive threats and agencies actually sharing factual
    information about foreign disinformation campaigns? And I think
    one example of this would be Russia's 2016 interference
    efforts. And would you recommend the U.S. Government simply
    stop investigating foreign interference on our elections
    altogether, or you know, if we were to do that, what would that
    do? Would that help or harm our democracy?
        Mr. Volokh. So there is a difference between coercion and
    kind of other non-coercive communication. The coercion would be
    a First Amendment violation. The others may or may not be,
    depending I think on how systemic they are. I do think that
    indeed we have seen lots of situations throughout American
    history where attempts to try to suppress foreign influence
    have turned into attempts to suppress domestic dissent.
        Including in the examples you gave of some people who are
    trying to suppress, I think wrongly trying to suppress anti-
    Israel speech on campuses are arguing: Oh, these people are the
    cats' paws of Hamas and such.
        So I do think that, even to the extent it is permissible
    for the government to communicate with the platforms, I think
    it is important that there be as much transparency as is
    possible consistently with national security, and that it is
    especially dangerous when they are trying to--where the
    government is trying to do that and then nobody finds out about
    it for years or until somebody manages to break the log jam in
    a lawsuit using discovery.
        Senator Hickenlooper. Thank you. Mr. Chair, if I can ask
    one more question?
        Senator Schmitt. Sure.
        Senator Hickenlooper. It will just be a yes/no, because
    this is one that I was--never really followed I had--until I
    was partners with a woman, remarkable woman named Joyce Meskis,
    had a bookstore in Denver called the Tattered Cover, and she
    was a great defender of free speech, and she looked at it in
    the--in that sense of: Your speech is part of what you read,
    and you should be able to read whatever you want without
    government interference or knowing about it.
        And there was a domestic terrorist who had blown up--had a
    bomb. They were pretty sure that he had purchased the book on
    how to make this bomb at her bookstore. And she refused to give
    the information over what her customers had purchased. And I
    just wanted to see with each of you whether you think that is--
    in that situation whether that is appropriate or not? And that
    is it is pretty much what it was. They wanted to get--find out
    whether this guy had bought that book from the bookstore as
    part of the case. And she said: You do not need that case. You
    got them on a million other things. This is a freedom of
    information issue.
        Yes, so I will start with you, Mr. Volokh.
        Mr. Volokh. Yes, so as I recall, I think she prevailed in
    that particular case. I am not sure that the court got it right
    there. As a general matter if--especially if there is probable
    cause and a warrant, all sorts of information may need to be
    turned over, and I am not sure there should be a categorical
    prohibition on disclosure of that information, especially when
    there is probable cause in a warrant.
        Mr. Berenson. I think that is a very smart answer, and I
    will just go with it.
        [Laughter.]
        Mr. Davis. Yes, I am not familiar with the facts of that
    case obviously as you are. I think that is a pretty complicated
    one. So I am going to have to decline on that one because I
    just do not have enough information. But that that is a, that
    is a tricky one.
        Senator Hickenlooper. You guys would not make very good
    senators. You know, all of our cases are pretty tricky.
        Mr. Kimmelman. Senator, I can understand the sentiment that
    she expressed and why she did it. I think I agree with Mr.
    Volokh, if there is a real legal cause for that information be
    handed over, the government has a right to it.
        Senator Hickenlooper. Well, I guess----
        Senator Schmitt. I think they dodged pretty well, Senator.
    They would make good senators.
        Senator Hickenlooper. Yes. I am pretty sure. You are
    exactly right--that means they would be excellent material for
    senators.
        Senator Schmitt. Yes. They pivoted.
        Senator Hickenlooper. I think that the Supreme Court
    obviously did support her and that this was part of the free
    speech that should be protected. And I guess you can, those
    most of you disagreed with that. So you can feel some comfort
    that precedence does not seem to be that all powerful in the
    present court. So there is a--certainly a chance in a similar
    situation we might get a different ruling.
        Senator Schmitt. Thank you. Thank you, Senator.
        Senator Hickenlooper. I yield back
        Senator Schmitt. Thank you, all. I want to thank all the
    witnesses for their testimony here today.
        Senators will have until the close of business on October
    15 to submit questions for the record. The witnesses will have
    until the close of business on October 29 to respond to those
    questions.
        And with that, that concludes today's hearing. The
    Committee stands adjourned.
        [Whereupon, at 12:33 p.m., the hearing was adjourned.]

                                A P P E N D I X

            The Leadership Conference on Civil and Human Rights
                                                        October 8, 2025

    Hon. Ted Cruz,
    Chair,
    Committee on Commerce, Science, and Transportation,
    U.S. Senate,
    Washington, DC.

    Hon. Maria Cantwell,
    Ranking Member,
    Committee on Commerce, Science, and Transportation,
    U.S. Senate,
    Washington, DC.

    Dear Chair Cruz and Ranking Member Cantwell,

        On behalf of The Leadership Conference on Civil and Human Rights, a
    coalition charged by its diverse membership of more than 240 national
    organizations to promote and protect the rights of all persons in the
    United States, and the undersigned co-chairs of our Media/
    Telecommunications Task Force, we appreciate the committee's attention
    to the critical issue of government overreach and threats to free
    expression guaranteed by the Constitution. The First Amendment serves
    as the bedrock of American democracy, and vigilance against government
    overreach is essential to preserving our constitutional freedoms. For
    these reasons, we respectfully request that you follow this hearing
    with one conducting oversight of the current Federal Communications
    Commission (FCC) and its commissioners. We also ask for this letter to
    be entered into the record of the Senate Committee on Commerce,
    Science, and Transportation hearing titled ``Shut Your App: How Uncle
    Sam Jawboned Big Tech Into Silencing Americans.''
    The Supreme Court Recently Rejected Claims of Unconstitutional
            ``Jawboning'' by the Prior Administration, Including
            Allegations Against CISA.
        This hearing claims to examine a ``censorship campaign conducted in
    secret by the Biden administration's Cybersecurity and Infrastructure
    Security Agency (CISA).'' Just last year, the Supreme Court examined
    similar allegations in Murthy v. Missouri (2024) and rejected them.
        In Murthy, plaintiffs--including two states and five social media
    users--alleged that Biden administration officials, including CISA, the
    White House, the Surgeon General, and the Center for Disease Control
    (CDC), pressured social media platforms to censor speech about COVID-19
    and election-related topics in violation of the First Amendment. The
    District Court issued a preliminary injunction against multiple
    agencies including CISA, and the Fifth Circuit affirmed.
        The Supreme Court reversed 6-3, holding that plaintiffs lacked
    standing because they failed to establish that their injuries were
    fairly traceable to government conduct or that an injunction would
    redress their harms. Writing for the majority, Justice Coney Barrett
    emphasized that the extensive factual record--spanning over 26,000
    pages--did not support the conclusion that government communications
    actually coerced platforms into content moderation decisions.
        The Court made several critical factual findings that undermined
    plaintiffs'' claims of coercion. First, ``the platforms had independent
    incentives to moderate content and often exercised their own
    judgment.'' Second, and most significantly, ``the platforms began to
    suppress the plaintiffs' COVID-19 content before the defendants'
    challenged communications started.'' The Court found that this is
    timeline undermined any inference that government pressure, rather than
    platforms' independent editorial policies, drove moderation decisions.
    As Justice Coney Barrett explained, this ``complicates the plaintiffs'
    effort to demonstrate that each platform acted due to `government-
    coerced enforcement' of its policies, rather than in its own
    judgment.''
        The Court further found that by the time plaintiffs filed suit in
    August 2022, ``the frequent, intense communications that took place in
    2021 between the Government defendants and the platforms had
    considerably subsided.'' Without evidence of ongoing pressure, the
    Court concluded that there was no basis to conclude that future content
    moderation would be traceable to government action rather than
    platforms' independent editorial choices. The Court noted that ``the
    available evidence indicates that the platforms have continued to
    enforce their policies against COVID-19 misinformation even as the
    Federal Government has wound down its own pandemic response measures.''
        Critically, the Murthy decision distinguished between government
    communications--even strong or critical ones--and unconstitutional
    coercion. The Court recognized that government officials may express
    views about misinformation and even ``speak with the platforms about
    COVID-19 and election-related misinformation,'' without violating the
    First Amendment. The core of this analysis is whether such
    communications cross the line into coercion that transforms private
    editorial decisions into state action. The Court held that the
    extensive factual record before it did not meet this standard.
        In Murthy, the Supreme Court examined claims similar to those at
    the heart of this hearing. After exhaustive fact-finding, the Court
    concluded that the evidence did not establish the causal link required
    to show unconstitutional coercion, finding instead that platforms acted
    on independent incentives, began content moderation before most
    government communications occurred, and continued their policies after
    government engagement ceased.
        The Court's framework makes clear that strong government criticism
    of platform policies, or even requests for policy changes, do not
    constitute ``jawboning'' absent concrete evidence that government
    pressure, rather than platforms' own editorial judgment, drove specific
    moderation decisions.
    The First Amendment Protects Content Moderation Decisions by Platforms
            and Prevents Government Intrusions that Suppress Individual
            Freedom of Expression.
        This hearing's framing inverts the actual threat of jawboning and
    the continued undermining of First Amendment rights that people in the
    U.S. face today. While the committee examines the actions of a previous
    administration no longer able to jawbone, the current administration is
    waging an unprecedented campaign of government coercion against private
    actors' constitutionally protected rights to engage in content
    moderation and editorial judgement.
        Since inauguration day, the President has used private lawsuits to
    extract nearly $60 million in settlements from social media platforms
    and over $30 million from major broadcast media outlets; the
    administration has simultaneously been attempting to criminalize
    otherwise protected speech by threatening prosecutions and political
    retaliation.\1\ These actions fall squarely within this Committee's
    jurisdiction and demand immediate oversight, investigation, and
    accountability for these ongoing abuses.
    ---------------------------------------------------------------------------
        \1\ Charlie Warzel, ``YouTube Bends the Knee,'' The Atlantic (Oct.
    1, 2025), https://www.theatlantic.com/technology/2025/10/youtube-trump-
    settlement/684431/?gift=YyWH8Vk
    lYl_6f2ICNsEnCaezGBz2MZZ0fzSx_iY8nfE; Meg James, ``After CBS and ABC's
    Trump Settlements, Democrats Want to Curb Presidential Library Gifts,''
    Los Angeles Times (July 16, 2025), https://www.latimes.com/
    entertainment-arts/business/story/2025-07-16/cbs-abc-trump-payouts-
    qatar-jet-proposed-curbs-library-gifts.
    ---------------------------------------------------------------------------
        Private companies--including social media platforms, broadcasters,
    and publishers--possess their own First Amendment rights to establish
    and enforce community standards, moderate content, and make editorial
    decisions about what speech to host or amplify on their platforms. The
    Supreme Court has repeatedly and recently affirmed these principles.
        In Moody v. NetChoice (2024), the Court held that platforms engage
    in constitutionally protected speech activity when they exercise
    editorial discretion, and that the government cannot require platforms
    to ``carry and promote [] speech they would rather discard or
    downplay.'' The Court explicitly rejected arguments that government can
    dictate platforms' content moderation to achieve ideological balance,
    noting that ``it is no job for government to decide what counts as the
    right balance of private expression.''
        Similarly, in National Rifle Association v. Vullo (2024), the Court
    unanimously held that government officials cannot use regulatory
    authority to coerce private entities into suppressing speech, warning
    that officials cross into impermissible coercion when their conduct
    ``could be reasonably understood to convey a threat of adverse
    government action in order to punish or suppress speech.''
    Recent Activity and Statements by the Trump Administration Constitute a
            Campaign of Coercive Intrusion and Control that Violate the
            First Amendment.
        The Trump administration's ongoing campaign against companies'
    content moderation and editorial decisionmaking runs afoul of the
    standard for impermissible government coercion set out in NRA v. Vullo.
    In September 2025, YouTube settled with President Trump for $24.5
    million over its decision to suspend his account following January 6,
    2021--joining Meta ($25 million) and X ($10 million) in paying nearly
    $60 million collectively for enforcing their own community standards
    during a national crisis.\2\
    ---------------------------------------------------------------------------
        \2\ Charlie Warzel, ``YouTube Bends the Knee,'' The Atlantic (Oct.
    1, 2025), https://www
    .theatlantic.com/technology/2025/10/youtube-trump-settlement/684431/
    ?gift=YyWH8VklYl_6f2
    ICNsEnCaezGBz2MZZ0fzSx_iY8nfE.
    ---------------------------------------------------------------------------
        These settlements represent precisely the chilling effect the First
    Amendment forbids: private companies' forced acquiescence in response
    to a ``threat of'' (or actual) ``adverse government action'' that
    interferes with and punishes private actors for exercising their
    editorial judgment as permitted by the First Amendment. This chilling
    effect extends across the entire media ecosystem, from social media
    platforms to broadcast networks to publishers, creating an environment
    of threat or undue government pressure in which companies make
    editorial decisions based on government pressures rather than their own
    standards, business model, users' safety, or the public interest.
        Recent statements by top U.S. Department of Justice (DOJ) officials
    further showcase how this administration is perpetuating unlawful
    overreach, violating principles of freedom of expression. After the
    murder of Charlie Kirk, Attorney General Pam Bondi has threatened to
    prosecute individuals and even businesses for ``hate speech''--speech
    that is constitutionally protected from government sanction--while
    simultaneously pressuring companies to abandon their own voluntary
    efforts to moderate such content.\3\ This incoherent approach punishes
    the exercise of free speech by individuals and companies alike,
    undermining constitutional protections and boundaries while expanding
    government control and suppressing free expression.
    ---------------------------------------------------------------------------
        \3\ Giselle Ruhiyyih Ewing, `` `That is Not the Law': Bondi
    Promised to Target `Hate Speech.' She's Facing Backlash From All
    Corners.,'' Politico (Sept. 16, 2025), https://www.politico.com/news/
    2025/09/16/pam-bondi-first-amendment-hate-speech-prosecution-00566424.
    ---------------------------------------------------------------------------
        Social media platforms have substantial legitimate interests--
    indeed, even responsibilities--in moderating hate speech, preventing
    the organization of violent extremist groups, and limiting the
    amplification of content that harms users and degrades the quality of
    discourse. Unlike government actors that are constrained by the First
    Amendment's prohibition on censoring hate speech, private platforms may
    permissibly decide not to host or amplify hate speech, inauthentic or
    misleading content, or extremist organizing. These editorial decisions
    serve multiple critical purposes: they maintain a platform's
    information ecosystem, protect users from harm, and prevent platforms
    from becoming vectors for radicalization and real-world violence.
    Coerced Demoderation Extracts Measurable Real-World Costs from
            Communities, the Marketplace of Ideas, and American Democracy.
        The consequences of abandoning content moderation fall
    disproportionately on communities of color and other marginalized
    groups. When platforms have reduced appropriate content moderation,
    unmoderated spaces have become vehicles for real-world voter
    suppression, orchestrated harassment campaigns, and targeted
    disinformation that functionally silences already marginalized voices.
        As civil rights enforcement offices across Federal agencies are
    eliminated, and nondiscrimination standards are corroded, the absence
    of platform moderation exacerbates these threats. To be clear,
    harassment and disinformation do not function as mere expressions of
    viewpoints: they systematically silence communities that have
    historically faced discrimination and continue to face barriers to full
    participation in democratic discourse.
        Moreover, content moderation protects consumers from fraud and
    scams that disproportionately target communities of color. The Federal
    Trade Commission's data shows that between January 2021 and June 2023,
    losses from social media-related fraud reached $2.7 billion, with Black
    and Latino consumers more than twice as likely as white consumers to
    lose money to digital scams.\4\ Platform policies that reduce fraud and
    disinformation serve essential consumer protection functions that align
    with--rather than contradict--regulatory objectives and First Amendment
    protections.
    ---------------------------------------------------------------------------
        \4\ Emma Fletcher, ``Social Media: A Golden Goose for Scammers,''
    Federal Trade Commission (Oct. 6, 2023), https://www.ftc.gov/news-
    events/data-visualizations/data-spotlight/2023/10/social-media-golden-
    goose-scammers.
    ---------------------------------------------------------------------------
        The consequences of demoderation have become evident. Users of X
    (formerly Twitter), following the platform's adoption of minimal
    content moderation policies and elimination of fact-checking, have
    experienced widely reported increases in hate speech, harassment, and
    extremist content. The platform has seen significant advertiser
    departures and user migration to alternative platforms.\5\ This
    degradation demonstrates why platforms historically invested in content
    moderation--not because the government forced them to, but because
    maintaining quality standards is essential to user safety and to
    product quality and viability.
    ---------------------------------------------------------------------------
        \5\ Michael Jensen, ``Hate Speech on X Surged for at Least 8 Months
    After Elon Musk Takeover--New Research,'' The Conversation (Feb. 12,
    2025), https://theconversation.com/hate-speech-on-x-surged-for-at-
    least-8-months-after-elon-musk-takeover-new-research-249603
    ---------------------------------------------------------------------------
        Government jawboning in its most pernicious form is the current
    distortion and unlawful weaponization of legal precedent and
    established constitutional norms to pressure private actors to abandon
    editorial standards altogether while also attempting to criminalize
    otherwise protected speech. If this Committee is concerned about
    government threats to free speech and editorial independence, this
    administration's ongoing campaign of corporate and individual
    intimidation and capitulation-seeking behavior demands immediate
    oversight and investigation.
    FCC Chair Brendan Carr's Actions Warrant Scrutiny by the Full Commerce
            Committee.
        Much has already been said about FCC Chair Brendan Carr's comments
    to American Broadcasting Company (ABC) affiliates urging them to inform
    ABC that they would not carry Jimmy Kimmel Live and highlighting the
    power the FCC has over the broadcasting licenses of the affiliates.\6\
    First amendment experts pointed to Carr's rhetoric and the subsequent
    (temporary) removal of Kimmel's show as a textbook example of an undue
    and violative form of pressure,\7\ and highlighted the many ways in
    which the FCC has attempted to police speech in the name of the public
    interest (both in the issuance of broadcast licenses and the approval
    of mergers).\8\
    ---------------------------------------------------------------------------
        \6\ Press Release, ACLU, ACLU Responds to Trump Administration Move
    Censoring Jimmy Kimmel (Sept. 17, 2025), https://www.aclu.org/press-
    releases/aclu-responds-to-trump-administration-move-censoring-jimmy-
    kimmel.
        \7\ Anna Branigin, ``How Cancel Culture Came for Everyone,''
    Washington Post (Oct. 1, 2025), https://www.washingtonpost.com/style/
    power/2025/10/01/cancel-culture-kimmel/.
        \8\ Ted Johnson, ``Brendan Carr's Threats On Networks May Be
    ``Jawboning,'' And Courts Don't Like It, Legal Experts Say'' Deadline
    (Sept. 19, 2025), https://deadline.com/2025/09/fcc-brendan-carr-
    jawboning-jimmy-kimmel-1236549243/; Tom Wheeler, ``Trump's CBS Lawsuit
    Ties Media Freedom to FCC's Regulatory Power,'' Brookings (Feb. 19,
    2025), https://www.brook
    ings.edu/articles/trumps-cbs-lawsuit-ties-media-freedom-to-fccs-
    regulatory-power/.
    ---------------------------------------------------------------------------
        Underlying all of this is also Nexstar's pending merger before the
    FCC and the upcoming changes to its existing media ownership rules,
    necessary for the merger to be permitted under current law.\9\ This
    recent behavior by the Chair was so egregious that many members of
    Congress on both sides expressed deep concern,\10\ and some even called
    for Carr's removal as Chair.\11\
    ---------------------------------------------------------------------------
        \9\ Keith Collins and Raj Saha, ``How a TV Merger Raised the
    Pressure on ABC to Suspend Kimmel,'' New York Times (Sept. 19, 2025),
    https://www.nytimes.com/interactive/2025/09/19/business/media/abc-
    nexstar-kimmel.html.
        \10\ Anthony Adragna, John Hendel, and Gabby Miller, `` `Be Very
    Careful:' Some in the GOP Balk at Kicking Kimmel Off TV,'' Politico
    (Sept. 18, 2025), https://www.politico.com/news/2025/09/18/gop-
    lawmakers-come-out-against-the-fccs-role-in-kimmel-axing-00572140.
        \11\ Press Release, Democratic Leader Hakeem Jeffries, Whip
    Katherine Clark, Caucus Chair Pete Aguilar, Caucus Vice Chair Ted Lieu,
    Assistant Leader Joe Neguse and DCCC Chair Suzan DelBene, Joint
    Leadership Statement on the Suspension of Jimmy Kimmel (Sept. 18,
    2025), https://democraticleader.house.gov/media/press-releases/joint-
    leadership-statement-suspension-jimmy-kimmel.
    ---------------------------------------------------------------------------
        We also have serious concerns about the way in which
    telecommunications companies have been pressured by FCC leadership into
    dropping their diversity, equity, and inclusion programs to ensure
    their mergers are approved.\12\ Both T-Mobile and Verizon had pending
    mergers before the FCC that were approved within days of sending
    letters to Chair Carr announcing the end of the programs. Despite plain
    civil rights mandates and an abject failure to meet them, the FCC
    required many companies to eliminate their programs that aimed to
    ensure fair treatment of and equal opportunity for women, people of
    color, people with disabilities, and the LGBTQ community in order for
    their mergers to be approved.
    ---------------------------------------------------------------------------
        \12\ Brit Morse, ``The FCC Takes on a New Role: DEI Regulator,''
    Fortune (July 17, 2025), https://fortune.com/2025/07/17/federal-
    communications-commission-new-role-dei-regulator/.
    ---------------------------------------------------------------------------
        Chair Carr has shown a pattern of complete disregard for the First
    Amendment and a willingness to abuse the FCC's authority to further
    this administration's authoritarian agenda. All of the above actions
    are part of a larger pattern of behavior at the FCC: disregard for the
    law and the will of Congress. This warrants further investigation by
    the Commerce Committee, and we strongly urge you to follow-up this
    hearing with one conducting oversight of the current FCC and its three
    commissioners.
        We stand ready to work with Congress on policies that will protect
    civil rights, prevent unlawful discrimination, and advance equal
    opportunity. Should you require further information or have any
    questions regarding this issue, please feel free to contact Jonathan
    Walter, senior policy counsel, at walter@civilrights.org.
                Sincerely,
                        The Leadership Conference on Civil and Human Rights

                                                                   UnidosUS

                             United Church of Christ Media Justice Ministry
                                     ______

     Prepared Statement of Writers Guild of America West and Writers Guild
                                of America East
      Media Consolidation Enables Censorship and is a Threat to Workers,
                        Consumers, and American Culture
        The Writers Guild of America West (WGAW) and Writers Guild of
    America East (WGAE) appreciate the opportunity to submit this statement
    for the record concerning the hearing entitled ``Shut Your App: How
    Uncle Sam Jawboned Big Tech into Silencing Americans'' on behalf of our
    membership. WGAW is a labor organization representing more than 11,000
    professional writers of films, television and streaming series, and
    news programming. WGAE is a labor union of more than 7,500 members
    working in film, television, news, podcasts and online media.
        For decades, the Guilds have called attention to the threat that
    concentrated market power in media poses to diversity of content and
    variety of viewpoints, in the context of mergers, antitrust policy, and
    broadcast and Internet regulations. Our members are directly affected
    by the lack of competition in media--a consolidated handful of
    employers have tremendous power to pressure writer compensation and
    working conditions and to gatekeep what stories can be seen in
    theaters, on television and on streaming services.
        Recent events have illustrated how easily this concentration of
    power transforms into direct censorship. ABC's decision to stop airing
    Jimmy Kimmel Live! after pressure from the Trump Administration and
    Nexstar Media Group followed Paramount's cancellation of The Late Show
    with Stephen Colbert during the Federal government's review of the
    Paramount-Skydance merger.\1\ Still more consolidation looms on the
    horizon. Powerful and consolidated gatekeepers already exercise
    considerable control over free speech by deciding what programming
    reaches Americans and unless consolidation in this industry is
    addressed, censorship of Americans by large conglomerates and the
    Federal government will remain unchecked.
    ---------------------------------------------------------------------------
        \1\ Press Release, WGA Statement on ABC's Decision to Pull Jimmy
    Kimmel Live! WGAW (Sept. 17, 2025), https://www.wga.org/news-events/
    news/press/2025/wga-statement-on-abc-decision-to-pull-jimmy-kimmel-
    live.
    ---------------------------------------------------------------------------
    Mergers have Consolidated Control over Media
        Deregulation and antitrust underenforcement over the last few
    decades have allowed for waves of consolidation in the media industry,
    leaving just a handful of major studios with control over the
    marketplace. Over the last two decades, more than $435 billion worth of
    mergers and acquisitions have been completed in media production or
    distribution.\2\ These mergers have increased the power of corporations
    to the detriment of writers, viewers, and competition.
    ---------------------------------------------------------------------------
        \2\ WGAW, Broker Promises: Media Mega-Mergers and the Case for
    Antitrust Reform (2021), https://www.wga.org/uploadedfiles/
    news_and_events/public_policy/broken-promises-merger-report.pdf.
    ---------------------------------------------------------------------------
        After the Disney-Fox merger, for example, Disney closed the
    competing Fox animation studio, pulled back content it had licensed to
    Netflix, banned Netflix from advertising on its television
    entertainment networks, and pressed creators and other workers to
    forego sharing in future licensing revenue on Disney shows. Disney's
    serial acquisitions of Pixar, Marvel, Lucasfilm, and Fox have reduced
    innovative development in favor of focusing on franchise films,
    reducing variety and choice at the theater. The company now owns two of
    the four largest streaming services in the U.S., Disney+ and Hulu, and
    has announced plans to combine them. After the Warner-Discovery merger,
    the company canceled, pulled, or wrote off $2 billion in content,
    including numerous projects created by or about people of color, and
    laid off hundreds of workers. WarnerMedia and Discovery are now
    essentially up for sale as the pre-merger companies; yet another in a
    series of mergers that purported to create better competitors, but
    instead result in merged entities burdened by debt and focused on
    rationalizing their disastrous business decisions by cutting costs.
    Streaming is Accelerating the Problems of a Consolidated Media
            Landscape
        In recent years, streaming video has become the dominant
    distribution platform for content while also becoming increasingly
    vertically integrated. In the 2024-2025 television season, 78 percent
    of original scripted streaming series were distributed by four
    companies, Netflix, Disney, Amazon and Apple.\3\ The entertainment
    industry's major employers also combine content production and
    distribution arms in order to self-supply their own content globally on
    their affiliated streaming services. In the 2024-2025 television
    season, nearly three-quarters of online scripted content on the major
    streaming platforms was self-supplied.\4\ This market structure
    forecloses competition from independent producers and distributors,
    enables monopsony power over writers and other industry workers, and
    gives conglomerates outsized control over what content reaches
    audiences.
    ---------------------------------------------------------------------------
        \3\ Writers Guild of America West Internal Data, 2025 (on file with
    WGAW) (based on WGA-covered scripted series).
        \4\ The major streaming platforms are Amazon Prime Video, Apple
    TV+, Disney+, HBO Max, Hulu (folding into Disney+), Netflix, Paramount+
    and Peacock. Writers Guild of America West Internal Data, 2025 (on file
    with WGAW) (based on WGA-covered scripted series).
    ---------------------------------------------------------------------------
        In the current streaming landscape, independent producers must
    compete with affiliated studios to sell content to the studios'
    streaming services, leaving them with few opportunities for accessing
    consumers. Meanwhile, a new competitor in streaming distribution would
    have difficulty licensing the third-party premium content it needs to
    offer a competitive service. The Disney-Fox and AT&T-Time Warner
    mergers, for instance, were both immediately followed by those
    companies withdrawing their content from competing services like
    Netflix and Amazon in favor of launching Disney+ and HBO Max.\5\ And in
    order to reach the end consumer, new streaming distribution entrants
    must strike deals with platform gatekeepers Amazon Fire TV, Roku, or
    Apple TV--which together control two-thirds of the U.S. connected TV
    market\6\--to have their apps available on the services, a barrier that
    reportedly inhibited the launches of HBO Max and Peacock.\7\ This
    market structure and the mergers that created it raise substantial
    barriers to entry, reduce innovation in content production, and
    increase the ability of gatekeepers to impose their own restrictions on
    what content gets made--while making further consolidation more likely.
    ---------------------------------------------------------------------------
        \5\ See, e.g., Michelle Castillo, Disney Will Pull Its Movies From
    Netflix and Start Its Own Streaming Services, CNBC (Aug. 8, 2017),
    https://www.cnbc.com/2017/08/08/disney-will-pull-its-movies-from-
    netflix-and-start-its-own-streaming-services.html; Sarah Perez, Disney+
    Gains the Marvel Series From Netflix and New Parental Controls,
    TechCrunch (Mar. 1, 2022), https://techcrunch.com/2022/03/01/disney-
    gains-the-marvel-series-from-netflix-and-new-parental-controls/; Ben
    Munson, HBO Max Expects Subscriber Impact From Amazon Channels Exit,
    Fierce Video (Aug. 11, 2021), https://www.fiercevideo.com/video/hbo-
    max-expects-subscriber-impact-from-amazon-channels-exit.
        \6\ Press Release, Pixalate's Q2 2025 Global Connected TV Device
    Market Share Reports: Roku Leads in North America (37 percent) and
    LATAM (45 percent), Samsung No. 1 in EMEA (33 percent), Xiaomi Leads in
    APAC (24 percent) (2025), https://finance.yahoo.com/news/pixalate-q2-
    2025-global-connected-143100935.html.
        \7\ HBO Max and Peacock customers were unable to access the new
    streaming services through Amazon devices when they launched in 2020
    because the companies had not reached agreement. Peacock and HBO's
    disputes reportedly stemmed from executives' desires to keep their
    streaming services outside of Amazon Channels to retain control of the
    user experience and viewership data. News commentary suggested that the
    lack of Amazon Fire carriage notably slowed subscriber growth at these
    services, and when HBO Max finally reached a deal with Amazon months
    later, the terms included an extension of WarnerMedia's contract with
    Amazon Web Services, its cloud computing platform.
    ---------------------------------------------------------------------------
        Streaming's dominant employers have also used their leverage to
    push down writers' pay. In 2023, writers went on strike for nearly five
    months to improve compensation and employment terms as practices such
    as short-term, more precarious employment and caps on experienced
    writer compensation had spread between employers to become
    ``standard.'' The lack of competition and vertical integration has also
    led to disputes among the bargaining parties in the period between
    contract negotiations. For example, the WGAW has collected millions in
    underpayment from Paramount\8\ and Netflix\9\ for undervaluing
    ``imputed'' license fees to vertically-integrated streaming services,
    and has filed related claims against Disney and NBCUniversal. Each of
    these disputes stems directly from the increasing consolidation of the
    media companies.
    ---------------------------------------------------------------------------
        \8\ Cynthia Littleton, WGA Sets $3.4 Million Settlement With CBS
    for All Access Streaming Residuals, Variety (Apr. 15, 2021), https://
    variety.com/2021/tv/news/wga-cbs-streaming-settlement-all-access-
    1234952956/.
        \9\ Katie Kilkenny, Writers Guild Arbitration With Netflix Yields
    $42M in New Residuals for Members, The Hollywood Reporter (Aug. 4,
    2022), https://www.hollywoodreporter.com/business/business-news/wga-
    netflix-residuals-42-million-writers-1235192877/.
    ---------------------------------------------------------------------------
        In the streaming market, instead of dynamic competition, we also
    see all the major firms raising prices and reducing content spending in
    parallel, leaving consumers to pay more for less, hallmarks of a
    concentrated market. And despite these already anticompetitive
    conditions, Wall Street continues to call for further consolidation.
    More mergers will leave even fewer firms in control of what content can
    reach audiences, and diminished variety in media's marketplace of
    ideas. And as the suspension of Jimmy Kimmel Live! and cancellation of
    The Late Show of Stephen Colbert illustrate, the lack of competition
    can easily facilitate explicit censorship.
    Congress Must Act
        Over the past few months, both Comcast-NBCUniversal and Warner
    Bros. Discovery have announced plans to spin off their linear networks
    to better position themselves for future M&A transactions. The newly
    combined Paramount-Skydance, immediately after that merger's
    conclusion, is exploring a bid for all of the assets of Warner Bros.
    Discovery, which would combine two major streaming services, movie and
    television studios, and a suite of television networks under a single
    owner. Absent government intervention, more harmful mergers are on the
    horizon as each merger spurs reactive consolidation among the remaining
    firms. But even the existing level of consolidation and vertical
    integration in the media industry is unacceptable and demands scrutiny,
    as we have recently seen it put free speech at risk. Congress must
    explore creative solutions that address the current level of
    consolidation, including limits on the ability of streaming services to
    own the content on their platforms, which was a condition of the
    Financial Interest and Syndication rules imposed on the broadcast
    networks when they held similar levels of control over content
    distribution. Failing to act will allow streaming services to dictate
    what stories are told, and permit media conglomerates to exercise their
    economic power as political power.
                                     ______

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                                     ______

          Response to Written Questions Submitted by Hon. Ted Cruz to
                                 Eugene Volokh
        Question 1. Does the First Amendment apply to the information
    Americans are permitted to receive and not just the content they can
    express?
        Answer. Yes. See, e.g., Va. State Bd. of Pharmacy v. Va. Citizens
    Consumer Council, Inc., 425 U.S. 748, 756 (1976) (concluding that
    commercial speech is protected because ``protection afforded is to the
    communication, to its source and to its recipients both''); id. at 757
    (``[I]n Procunier v. Martinez, 416 U.S. 396, 408-409 (1974), where
    censorship of prison inmates' mail was under examination, we thought it
    unnecessary to assess the First Amendment rights of the inmates
    themselves, for it was reasoned that such censorship equally infringed
    the rights of noninmates to whom the correspondence was addressed.'');
    First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 775-76, 783
    (1978) (concluding that corporate speech is protected ``based not only
    on the role of the First Amendment in fostering individual self-
    expression but also on its role in affording the public access to
    discussion, debate, and the dissemination of information and ideas'');
    Lamont v. Postmaster Gen., 381 U.S. 301, 305, 307 (1965) (relying on
    ``the addressee's First Amendment rights'' rather than the sender's,
    where the sender was a foreign government); see also id. at 307-08
    (Brennan, J., concurring) (stressing that it's not clear whether the
    First Amendment protects ``political propaganda prepared and printed
    abroad by or on behalf of a foreign government,'' but concluding that
    the law was unconstitutional because it violated the recipients'
    ``right to receive'' information, regardless of the senders' rights to
    speak).

        Question 2. Does the First Amendment apply to artificial
    intelligence?
        Answer. I think the First Amendment precludes the government from
    restricting the output of AI programs, because that would unduly
    interfere with Americans' right to receive information (and Americans'
    right to use the AI to help craft their own messages). See Eugene
    Volokh, Mark A. Lemley & Peter Henderson, Freedom of Speech and AI
    Output, 3 J. Free Speech L. 651 (2023).

        Question 3. What are the First Amendment and free speech
    implications of government attempts to alter content generated by
    artificial intelligence to address alleged ``bias'' or to pressure
    artificial intelligence companies to set up processes to moderate or
    eliminate alleged ``disinformation,'' as well as ``offensive'' or
    ``objectionable'' content?
        Answer. I think this would violate the First Amendment, just as it
    would be unconstitutional for the government to restrict ``bias,''
    ``disinformation,'' or ``offensive'' or ``objectionable'' content in
    newspapers. See, e.g., Miami Herald Publishing Co. v. Tornillo, 418
    U.S. 241 (1974) (bias); New York Times Co. v. Sullivan, 376 U.S. 254,
    288 (1964) (disinformation about the government); United States v.
    Alvarez, 567 U.S. 709 (2012) (plurality opin.) (disinformation
    generally); id. at 731-32 (Breyer, J., concurring in the judgment)
    (disinformation about ``philosophy, religion, history, the social
    sciences, the arts, and the like''); id. at 751 (Alito, J., dissenting)
    (disinformation ``about philosophy, religion, history, the social
    sciences, the arts, and other matters of public concern''); Hustler
    Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (offensive or
    objectionable content).

        Question 4. What should I keep in mind as I craft legislation to
    ensure that Americans are fully protected against government efforts to
    decide or limit what they can read?
        Answer. That substantive rules require procedural enforcement
    mechanisms, such as allowing people to sue the Federal government and
    officials for violating the First Amendment, just as Congress has let
    people sue state and local governments and officials.

        Question 5. What are some of the key challenges Americans face in
    court to hold the Federal government accountable for improper and
    unlawful jawboning?
        Answer. The lack of a private right of action against Federal
    officials for violating First Amendment rights under color of Federal
    law, parallel to the private right of action provided as to violations
    by state and local officials under 42 U.S.C. Sec. 1983.

        Question 6. Can Congress help solve any of the challenges
    identified in the preceding question with new legislation?
        Answer. Yes, by providing a private right of action against Federal
    officials for violating First Amendment rights under color of Federal
    law, parallel to the private right of action provided as to violations
    by state and local officials under 42 U.S.C. Sec. 1983.
                                     ______

       Response to Written Questions Submitted by Hon. Maria Cantwell to
                                 Eugene Volokh
        First Amendment. Brendan Carr, the Chairman of the FCC, recently
    went on a podcast to criticize Jimmy Kimmel's comments on his late-
    night talk show on ABC. He told Disney, the parent of ABC, that ``we
    can do this the easy way or the hard way.''
        And he told the licensed broadcasters that carry ABC programming
    that ``it's time for them to step up'' and stop this ``garbage.'' Just
    hours later, the biggest affiliate groups said they would preempt
    Kimmel's show, including one with a major pending merger that requires
    FCC approval. Minutes later, ABC said it would suspend Kimmel. Kimmel
    is back on the air, but the chilling effect of Brendan Carr's words
    lingers.
        As I wrote to Chairman Cruz weeks ago, we need Brendan Carr to
    answer for this attack on the free press.

        Question 1. Professor Volokh, you are a noted First Amendment
    scholar. Do you think that Carr's threats to ABC and its affiliates
    violated the First Amendment?
        Answer. Yes.

        AP and Gulf of America. President Trump tried to rename the Gulf of
    Mexico to the Gulf of America. Polls show that more than 70 percent of
    Americans oppose the idea.
        What's actually dangerous, though, is how the White House used this
    juvenile stunt to intimidate the free press. The Associated Press
    refused to go along with Trump's Orwellian attempt to make Americans
    change the name of the Gulf of Mexico.
        In retaliation, the AP was kicked out of the White House press pool
    and not allowed into the Oval Office.

        Question 1. Professor Volokh, setting aside whether the White
    House's actions technically violated the First Amendment, do you think
    that in a free society, it is appropriate for the White House to punish
    news organizations that refuse to go along with its attempts to police
    language?
        Answer. I don't believe it is appropriate, especially when the AP's
    decision went along with a long-established and broadly accepted name.
        At some point, the actions of a news outlet may become so bizarre
    or ideologically skewed that they may lead the outlet to lose
    credibility, and reasonably lead the Administration to no longer want
    to give the outlet special access to the press pool: Say, for instance,
    that the AP decided to rename the Gulf of Mexico ``the Stolen
    Indigenous People's Sea,'' or to start calling Washington, D.C. ``the
    Capital of the Great Satan.'' But of course, the AP's retaining the
    longstanding name ``Gulf of Mexico'' is very far removed from such
    hypotheticals.

        Universities. In addition to the media and law firms, President
    Trump has also targeted universities and nonprofit organizations that
    express views that he disagrees with. The administration has threatened
    to revoke non-profit status; restricted universities' ability to enroll
    international students; and canceled or paused billions of dollars in
    grant funding.
        Courts have consistently held that government officials cannot
    retaliate against individuals or entities because they disagree with
    their speech.

        Question 1. Prof. Volokh, you are a scholar of the First Amendment.
    Is it consistent with the First Amendment for the administration to
    strip the tax-exempt status or otherwise punish universities or other
    entities that have political disagreements with the administration?
        Answer. No, if the stripping or punishment were to happen because
    the universities or other entities express viewpoints that the
    administration disagrees with.

        Law Firms. Since he took office earlier this year, President Trump
    has attacked institutions that he perceives to be opposed to him.
    President Trump signed a series of executive orders targeting law firms
    that hired perceived political opponents or represented clients who
    opposed him.
        These executive orders suspend the security clearances for firm
    lawyers; deny them entrance to Federal buildings; and seek to force
    Federal contractors to end a relationship with them.

        Question 1. You are an expert on the First Amendment. Do these
    executive orders violate the First Amendment?
        Answer. Yes, considerable portions of the orders do. I signed a
    brief so arguing, Brief of Amici Curiae 353 Law Professors in Support
    of Plaintiff's Motion for Summary Judgment and for Declaratory and
    Permanent Injunctive Relief, Perkins Coie LLP v. U.S. Department of
    Justice, No. 1:25-cv-00716 (D.D.C. Apr. 2, 2025), https://
    storage.courtlistener.com/recap/gov.uscourts.dcd.278290/
    gov.uscourts.dcd.278290.
    45.1.pdf.

        Question 2. Does the First Amendment prevent government officials
    from retaliating against political opponents for their views?
        Answer. That is complicated, because it depends on the nature of
    the retaliation. Government officials can't deny people or
    organizations generally available benefits (such as tax exemptions or
    broadly available grants aimed at promoting a diversity of private
    views) based on their viewpoints. Nor can they generally cut off
    contracts or other grants to people or organizations because of those
    people's or organizations' other speech (speech that isn't funded by
    those contracts or grants).
        But they can, for instance, refuse to appoint a political opponent
    to high office based on the opponent's views. Likewise, they can choose
    to give discretionary grants for speech that endorses certain views but
    not other views. To offer one famous example, ``When Congress
    established a National Endowment for Democracy to encourage other
    countries to adopt democratic principles, it was not constitutionally
    required to fund a program to encourage competing lines of political
    philosophy such as communism and fascism.'' Rust v. Sullivan, 500 U.S.
    173, 194 (1991).
        There are of course other possible scenarios; in some, government
    officials' viewpoint-based judgments may be unconstitutional while in
    others they may be constitutionally permissible.

        App Stores. Recently, after Attorney General Pam Bondi demanded
    that Apple remove a lawful app crowdsourcing location information from
    the App Store, Apple agreed to do so.

        Question 1. Do you think citizens sharing location information with
    each other, such as the locations of police speed checks, through an
    app, is protected speech under the First Amendment?
        Answer. It depends. At some point, it may become essentially aiding
    and abetting crime or a civil violation--basically, acting as a lookout
    for someone else--or obstruction of justice, and thus constitute
    constitutionally unprotected ``speech integral to criminal conduct.''
    The exact boundaries of that First Amendment exception are not clearly
    settled. I wrote about this in detail at Eugene Volokh, Crime-
    Facilitating Speech, 57 Stan. L. Rev. 1095 (2005), but the law has
    become still more complex since then, see Eugene Volokh, The ``Speech
    Integral to Criminal Conduct'' Exception, 101 Cornell L. Rev. 981
    (2016); United States v. Hansen, 143 S. Ct. 1932 (2023).

        Question 2. Did the Attorney General violate the First Amendment
    when she demanded that Apple remove a legal app with crowdsourced
    location data from its app store?
        Answer. If the AG threatened Apple with prosecution for removing
    such an app, then she might have violated the First Amendment,
    depending on the precise facts about just what information the app
    conveyed and under what circumstances (I'm not certain). But if the AG
    argued to Apple that the app violated Apple's own guidelines, and asked
    it to enforce those guidelines, without threatening Apple with
    prosecution or other government retaliation, then that likely didn't
    violate the First Amendment.

        Question 3. Are you aware of any instances during the Biden
    administration when the Federal government demanded that Apple or
    Google remove a legal app?
        Answer. Yes; the Protecting Americans from Foreign Adversary
    Controlled Applications Act, the statute targeting TikTok enacted
    during the Biden Administration, essentially required Apple and Google
    to remove from their app stores the TikTok app, which had hitherto been
    legal.

        Question 4. Are you aware of any instances where foreign
    governments have demanded that Apple and Google remove legal apps?
        Answer. No, but I haven't closely studied the actions of foreign
    governments.
                                     ______

       Response to Written Questions Submitted by Hon. Maria Cantwell to
                                 Gene Kimmelman
        First Amendment. Brendan Carr, the Chairman of the FCC, recently
    went on a podcast to criticize Jimmy Kimmel's comments on his late-
    night talk show on ABC. He told Disney, the parent of ABC, that ``we
    can do this the easy way or the hard way.''
        And he told the licensed broadcasters that carry ABC programming
    that ``it's time for them to step up'' and stop this ``garbage.'' Just
    hours later, the biggest affiliate groups said they would preempt
    Kimmel's show, including one with a major pending merger that requires
    FCC approval. Minutes later, ABC said it would suspend Kimmel. Kimmel
    is back on the air, but the chilling effect of Brendan Carr's words
    lingers.
        As I wrote to Chairman Cruz weeks ago, we need Brendan Carr to
    answer for this attack on the free press.

        Question 1. Mr. Kimmelman, you have observed the media for decades.
    Have you ever seen quite so blatant an attempt at censorship by the
    Chair of the FCC?
        Answer. I have never seen such blatant interference in the content
    of media companies from any previous FCC Chair.

        Question 2. At the hearing, some claimed that legislators
    expressing their views about a licensed media company to the FCC, as I
    did in 2018, Senators Rubio, Scott, and Cotton did in 2022, and Senator
    Lee did in 2024, raises the same First Amendment concerns as the FCC
    Chair threatening action against a regulatee. Do you think that
    legislators expressing their views to the FCC about a licensee raises
    the same concerns as the regulator itself threatening a licensee?
        Answer. No, I believe that legislators have a right to express
    their views and propose legislation as they see fit. It is a very
    different, direct threat to the First Amendment, for the FCC to
    threaten to take action against a licensee based on the content they
    distribute.
        During the same podcast where Carr criticized Jimmy Kimmel, Carr
    also stated: ``It's the licensed TV stations that have the public
    interest standard, including those TV stations that Comcast and Disney
    own. So FCC regulatory action focuses on those individual stations.''
    He also claimed: ``The public interest means you can't be running a
    narrow partisan circus and still meet your public interest obligations.
    It means you can't be engaging in a pattern of news distortion.''

        Question 3. Is Carr's statement that the FCC's public interest
    obligation means broadcast stations ``can't be running a narrow
    partisan circus'' correct? Why or why not?
        Answer. I don't really know what Chairman Carr was referring to,
    but the public interest test has previously been viewed as a way to
    evaluate whether a broadcaster is meeting community needs. It is hard
    to imagine that presentation of a set of views of interest in a
    community is somehow outside the scope of the public interest. The FCC
    has previously refrained from cataloging ideas as ``partisan'' just for
    presenting a particular point of view, to protect the First Amendment
    rights of their licensees.

        Question 4. Other than Carr, has an FCC chair ever threatened a
    network or local affiliate with regulatory action based on the content
    of a late-night comedian's monologue?
        Answer. Not to my knowledge.

        Question 5. Have the FCC's actions since the Nixon administration
    to revoke broadcast licenses been limited to concerns over the
    licensee's character, such as being a convicted criminal, and not based
    on the content of the licensee's speech?
        Answer. Yes
        The Communications Act of 1934 requires broadcast licensees to
    serve the ``public interest, convenience, and necessity,'' and grants
    the FCC authority to consider those interests when granting or renewing
    licenses. The FCC has long held that ``the public interest is best
    served by permitting free expression of views,'' and Section 326 of the
    Communications Act specifically prohibits the Commission from
    ``censorship.''

        Question 6. Does the ``public interest'' standard legally permit
    the FCC Chair to suppress speech by revoking the licenses of
    broadcasters for airing content the Administration does not like?
        Please explain.
        Answer. No

        Question 7. Should an FCC Chair repeatedly mislead the American
    public that the FCC's longstanding public interest standard should be
    used to suppress speech? Please explain.
        Answer. I fear that repeated statements from the FCC Chair
    describing a power to suppress speech, which clearly exceeds his
    authority, has a chilling effect on public discourse and harms open,
    democratic debate in our society.

        Media Consolidation. Americans rely on local news to understand
    what's going on in their communities. According to the Pew Research
    Center, nearly three-quarters of Americans trust their local newspapers
    and broadcasters. But local news faces serious headwinds. The
    advertising-supported model of local newspapers and local broadcast has
    declined, with an increasing share of revenue going to tech platforms
    rather than news organizations.
        There has been a wave of consolidation in the media, ranging from
    broadcast affiliates to newspapers. And for many Americans, most of
    their news comes through social media algorithms, giving the owners of
    these platforms inescapable influence over what we see and read.

        Question 1. What are the effects of media consolidation on the
    diverse voices and viewpoints that we need for a vibrant democracy?
        Answer. Excessive media consolidation is likely to reduce open,
    diverse debate in our society, undermining the marketplace of ideas
    that is essential for a vibrant democracy.

        Question 2. Does the increasing consolidation of media make it more
    vulnerable to pressure from politicians?
        Answer. Politicians can always try to pressure the media, however
    the fewer the owners the easier it is to make that pressure succeed.
    The more media is diversely owned by independent companies, the more
    difficult it is for politicians to steer public debate to serve their
    self interest.

        Social Media and Antitrust. Social media platforms are increasingly
    the most important town square in our democracy. The algorithms decide
    the topics that are debated and the views that are represented. Because
    of the power of these platforms in our society, there has been a
    bipartisan recognition of the need to hold them to account. To date,
    the most prominent efforts have been through antitrust law.
        Major antitrust cases were brought against several platforms by the
    first Trump administration and the Biden administration and have been
    continued through transitions.

        Question 1. Is antitrust the right tool to bring platforms to heel?
        Answer. Antitrust is an essential tool to address market abuses by
    tech platforms, however it is not sufficient to address all the
    impediments to robust competition in digital markets.

        Question 2. What other policies should we consider to ensure these
    platforms serve individuals and support a democratic society, rather
    than undermine it?
        Answer. Congress should consider making it easier to bring
    antitrust cases against dominant digital platforms, and it should also
    create some regulatory guardrails to prevent discriminatory practices.

        Public Media and Local Journalism. Grants from CPB support nearly
    400 public radio stations across the country, which employ nearly 9,800
    people, including 3,000 local journalists, editors, and producers. With
    their signal reach, particularly in rural areas, public radio stations
    can help to slow the spread of ``news deserts,'' or areas that have no
    source of local news.
        Of the 204 ``news desert'' counties identified by the State of
    Local News Project, 67 are served by local public radio signals.
    Newsrooms have lost over 60 percent of their newsroom employees over
    the last two decades. Meanwhile, public radio has added 900 local
    newsroom employees since 2012.
        Despite this, Republicans zeroed out Federal funding for public
    broadcasting earlier this year, costing more than 400 jobs in public
    media, putting dozens of stations at risk of closure, and causing the
    Corporation for Public Broadcasting to close down.

        Question 1. How does public media enhance local journalism?
        Answer. Public media has served a critical role in local markets,
    filling in information gaps left by the disappearance of private media
    players. Without public media, and with the shuttering of numerous
    local newspapers, many communities will be deprived of the information
    flow we rely upon to fuel a robust democracy.

        Question 2. What will be the effect of Republicans defunding public
    broadcasting?
        Answer. Given the enormous loss of local information flowing
    through local newspapers, any reduction in public media threatens to
    harm the marketplace of ideas that is critical to an informed
    citizenry.
                                     ______

       Response to Written Questions Submitted by Hon. Amy Klobuchar to
                                 Gene Kimmelman
    Question Topic: Antitrust and the First Amendment
        Competitive markets can help ensure that no one entity controls
    what we see or hear. But when markets become consolidated, access to
    diverse viewpoints is put at risk. In your testimony, you said that
    antitrust is a necessary but often insufficient tool to sustain diverse
    local media.

       How have Big Tech platforms used their position as content
            gatekeepers to siphon away resources from local media,
            including by misappropriating content?
        Answer. As more and more people rely upon the Internet as a gateway
    for their information needs, the dominant tech platforms (e.g., Google,
    Apple, Meta) have enormous power over how news and media content are
    disseminated. Control of these gateways to the public is synonymous
    with control over the advertising and related revenue necessary to
    produce content and report on local, societal and even global events.
    It is critical to prevent tech platforms from expropriating revenue
    necessary to fund high quality content.
    Question Topic: AI and Local Media
        A free press is a crucial part of our democracy, but local news is
    facing an existential crisis. Since 2005, the U.S. has lost about 3,300
    local newspapers, roughly one-third of newspapers nationally. The pace
    of these newspaper closures is accelerating at a time when tech
    companies are using local news content to train AI models without
    compensating journalists and papers for their critical contributions.

       What role should companies that profit from AI models that
            use news content play in ensuring journalists and newspapers
            are fairly compensated?
        Answer. Companies that build AI models with content created by
    others should pay license fees or royalties to content creators. We
    have done this for music and broadcasting in the past, and now is the
    time to do something similar for AI models.
    Question Topic: Political Violence
        Our country has endured a troubling wave of political violence that
    threatens public safety and our democracy. Elected officials from both
    parties must bring down the temperature of our political discourse,
    especially online, where a lot of this hate is spread.

       How would transparency from platforms regarding their
            ranking algorithms help address the algorithmic amplification
            of violent political rhetoric?
        Answer. Transparency should put pressure on the tech platforms to
    address the dangers they create or contribute to by amplifying violent
    content. Transparency should enable the public to reject engaging with
    platforms that promote violence, creating financial benefits for
    platforms that seek to limit algorithmic amplification of violence.

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